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a: 


^COMMENTARIES 


ON 


THE    LAW    OF    PERSONS 


AND 


PERSONAL    PROPERTY. 


BEING  AN   INTRODUCTION  TO   THE 
STUDY  OF   CONTRACTS. 


BY 

THEODORE   W.   DWIGHT, 

LATE  PROFESSOR   OF    LAW   AT    COLUMBIA    COLLEGE,    NEAV   YORK. 

EDITED  BY 

EDWARD   F.  DWIGHT, 

OF    THE    NEW    YORK    BAR. 


BOSTON- 
LITTLE,  BROWN,  AND   COMPANY. 

1894. 


Copyright,  1894, 

Bt  Mary  B.  O.  Dwight,  Dwight  H.  Olmstead,  and 
Edward  L.  Partridge,  Administrators. 


T 


0%7i 


University  Press  : 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


EDITOR'S    PREFACE. 


This  treatise,  as  stated  by  the  author,  was  intended 
as  an  introduction  to  the  law  of  contracts.  In  the 
beginning  he  doubtless  had  in  mind  the  preparation  of 
a  more  extended  work,  which  would  have  embraced  the 
whole  subject  of  contract  law.  This  plan,  however,  was 
not  carried  out.  In  its  stead  the  work  was  confined  in 
its  scope  to  those  topics  included  in  the  author's  lectures 
at  Columbia  Law  School  immediately  preceding  the  course 
on  contracts. 

These  lectures  form  the  basis  of  the  division  of  subjects 
both  as  to  the  law  of  persons  in  the  first  book  and  the 
law  of  personal  property  in  the  second.  In  the  law  of 
persons  the  grand  division  of  absolute  and  relative  rights 
is  observed  throughout.  The  former  class  is  divided  into 
the  rights  of  personal  security  and  personal  liberty, 
while  under  the  latter  and  more  numerous  class  of 
relative  rights  are  considered  those  which  spring  from 
the  relations  of  husband  and  wife,  parent  and  child, 
guardian  and  ward,  and  master  and  servant.  Separate 
chapters  are  devoted  to  citizens  and  aliens,  infancy,  the 
doctrine  of  status  as  affecting  capacity,  and  finally  to 
corporations,  which  closes  the  first  book. 


fo7IZ|0 


j^  editor's  preface. 


In  considering  the  rights  of  personal  security  and 
personal  liberty,  the  author  has  discussed  at  length,  in 
connection  with  early  English  statutes,  the  rights  and 
privileges  of  citizens  of  the  United  States  under  the 
Constitution  and  its  amendments.  Provisions  in  restraint 
of  the  general  government  on  the  one  hand,  and  of  the 
States  on  the  other,  are  examined  and  explained  in  detail 
under  separate  subdivisions.  There  is  also  given  an 
extended  account  of  the  writ  of  habeas  corjms  in  the 
State  and  Federal  Courts,  and  also  separately  in  its 
relation  to  extradition. 

The  right  of  private  property  in  things  personal  forms 
the  subject  of  the  latter  half  of  the  work.  In  the  opening 
chapters  considerable  attention  is  paid  to  elementary  dis- 
tinctions peculiar  to  different  forms  of  ownership,  and  to 
the  qualifications  under  which  all  ownership  exists.  Chief 
among  these  qualifications  are  eminent  domain,  public 
necessity,  and  the  police  power.  By  far  the  more  important 
part  of  the  second  book,  however,  treats  of  the  methods 
of  acquiring  ownership,  which  may  be  by  "  original  acqui- 
sition" or  by  "act  of  the  law."  Under  the  former  mode 
are  grouped  capture,  finding,  occupancy,  accession,  con- 
fusion, copyrights,  patents,  and  trademarks;  under  the 
latter,  forfeiture,  escheat,  taxation,  eminent  domain,  judg- 
ment, assignments  in  trust  for  creditors,  bankruptcy  and 
insolvency,  and  succession  by  will  or  in  case  of  intestacy. 
To  the  very  full  treatment  of  wills  and  intestacy  there 
is  appended  a  section  on  the  rights,  duties,  and  liabilities 
of  executors  and  administrators. 

These  subjects,  various  as  they  are,  are  discussed  in 
detail,  and  the  principles  applicable  to  each  expounded 
with  that  degree  of  particularity  which  the  importance 


editor's  preface.  V 

of  the  subject  demands.  In  support  of  the  views  of  the 
text,  the  author  has  selected  such  authorities  as  seemed 
best  to   expUiin  and   fortify  the  position   taken. 

In  preparing  the  manuscript  for  pubhcation,  I  have 
not  endeavored  to  do  more  than  to  add  such  late  decisions 
and  statutes  as  the  lapse  of  time  since  its  completion  has 
made  necessary.  In  accordance  with  the  plan  to  which 
the  notes  and  citations  of  the  author  conform,  no  attempt 
has  been  made  to  give  a  complete  list  of  late  decisions. 
Later  authorities,  except  where  they  change  or  add  to 
the  rule  as  stated  in  the  text,  or  except  wdiere  it  was 
thought  they  were  valuable  merely  because  recent,  have 
been  omitted.  Some  alterations  have  been  made  in  the 
arrangement,  and  certain  passages  omitted  altogether, 
because  of  changes  in  the  law.  With  these  exceptions 
the  text  remains  as  originally  written. 

The  notes  and  citations  made  by  the  author  appear 
below  the  text,  and  are  separated  by  a  line  from  those 
I  have  added. 

E.  F.  D. 


96  Broadway,  New  York, 
October  1,  1894. 


C  O  X  T  E  X  T  S. 

■ • 

BOOK    I. 

THE  LAW   OF  PERSONS. 


CHAPTER    I. 

I>'TRODUCTORY. 


Rights.  —  Public  Law  as  distinguished  from  Private  Law.  —Municipal 
Law  defiued.  —  Remedies  at  the  Common  Law    .......  1-9 


CHAPTER   IL 

THE   SOURCES   OF   THE   LAW 10-44 

Division  I.  —  Common  Law. 

L  Equity.  —  II.  The  Roman  or  Civil  Law  as  used  in  the  Admiralty, 
Ecclesiastical  and  Military  Courts.  —  The  Pandects  or  Digests.  —  The 
Institutes.  —  The  New  Code  and  Novels.  —  The  Relation  of  the  Roman 
Law  to  the  Jurisprudence  of  England.  —  III.  Reports  as  Depositaries 
of  Rules  of  Law.  —  Rules  determining  the  Value  of  a  Reported 
Case 11-2S 

Division  II.  —  Statute  Law. 

I.  Preliminary.  —  The  Law-making  Power  in  the  United  States  and 
England.  —  Public  and  Private  Statutes.  —  Declaratory,  Penal  and 
Remedial  Statutes.  —  II.  Rules  Governing  the  Interpretation  and  Con- 
struction of  Statutes.  (1)  General  Rules  of  Interpretation.  (2)  Special 
Rules  applicable  to  the  Interpretation  and  Construction  of  Statutes. 
—  III.  Repeal  and  its  Effect.  —  Express  and  Implied  Repeal.  — 
TV.  Constitutional  Restrictions  upon  Legislation  by  Congress,  by  State 

no    A  * 

Legislatures,  and  by  Parliament ^o-±i 


Viii  CONTENTS. 

FAOB 

CHAPTER   III. 

THE  EIGHTS  OF   PERSONS 45-118 

Absolute  Rights  —  Personal  Security,  Personal  Liberty,  and  Private  Prop- 
erty. —  Magna  Charta.  —  Petition  of  Riglit.  —  Habeas  Corpus  Act.  — 
Bill  of  Rights.  — Act  of  Settlement 45--51 

Provisions  of  the  United  States  Constitution  in  Restraint  of  the  General 
Government.  —  I.  Restrictions  upon  Legislation  usurping  Judicial 
Metliods.  (1)  Bills  of  Attainder.  (2)  Ex  post  facto  L&vvs.  —  11.  Reg- 
ulations preventing  Unnecessary  Interference  by  Congress  with  the  Free 
dom  of  the  Individual.  (1)  Religion  and  the  Free  Exercise  thereof. 
(2)  Freedom  of  Speech  and  of  the  Press.  (3)  Right  to  Assemble  and 
Petition  for  a  Redress  of  Grievances.  (4)  Quartering  Soldiers. 
(5)  Right  to  Keep  and  Bear  Arms.  —  III.  Restrictions  affecting  the 
Administration  of  Justice.  (1)  Suspension  of  the  Privilege  of  the 
Writ  of  Habeas  Corpus.  (2)  Security  against  Unwarrantable  Searches 
and  Seizures.  (3)  Trial  by  Jury  in  Criminal  Cases.  (4)  Speedy  and 
Public  Trial  in  Criminal  Cases.  (5)  Regulations  as  to  the  ]\Iethod, 
Progress,  and  Results  of  Criminal  Trials.  (6)  General  Regulations  in 
Criminal  Trials.     (7)  Trials  in  Federal  Courts  in  Civil  Actions  .     .    51-72 

Provisions  in  the  United  States  Constitution  in  Restraint  of  State  Action. 

—  Fourteenth  Amendment.  —  Due  Process  of  Law.  —  Equal  Protection 

of  the  Laws 72-77 

Personal  Security.  —  Assault  and  Battery.  —  Duress.  —  Injuries  to  Health 
or  Personal  Comfort.  —  Injuries  to  Reputation.  (1)  Libel.  (2)  Slan- 
der.—  Principles  applicable  to  both. — Malice.  —  Privileged  Commu- 
nications. —  Defences.  —  Denial.  —  Justification  and  JNIitigating  Cir- 
cumstances  77-94 

Personal  Liberty.  —  False  Imprisonment.  —  Writ  of  Habeas  Corpus.  — 
I.  The  Applicant.  —  II.  Method  of  Procedure.  —  III.  Remand  and 
Discharge.  —  IV.  Habeas  Corpus  in  United  States  Coui'ts.  —  Habeas 
Corpus  and  Extradition.  (1)  Interstate.  (2)  Foreign  Extradition.  — 
Writ  of  Ne  Exeat.  —  Religious  Worship.  —  Freedom  of  Speech  and 
of  the  Press 94-118 

CHAPTER   IV. 

CITIZENS    AND   ALIENS 119-140 

Division  I.  —  Citizens. 

Sect.  I.  Acquisition  of  Citizenship.  (1)  By  Birth.  (2)  By  Naturali- 
zation     12.3-128 

Sect.  IT.  Special  Rules  as  to  Citizenship  under  the  United  States  Con- 
stitution. (1)  Privileges  and  Immunities  of  Citizens.  (2)  Rights 
secured  by  the  Fourteenth  Amendment 128-131 

Division  II.  —  Aliens. 
1.  Disability  to  acquire  Land.     (1)  Acquisition  by  Purchase.     (2)  Title 
by  Descent.  —  IL  Special  Questions  concerning  Alienage.     TIL  Alien 
Enemies.     (1)  No  Standing  in  our  Courts.     (2)  Legality  of  Contracts. 

—  IV.  Right  of  Expatriation 131-140 


CONTENTS.  IX 


CHAPTER   Y. 

PAGE 

HUSBAND   AND   WIFE 141-232 

Preliminary  Remarks  as  to  the  Domestic  Relations Ill 

Division   I.  —  The   Creation  of  the  Relation  of  Husband 

AND  Wife. 

Sect.  I.  Capacity  to  Contract  Marriage.  (1)  Defect  in  Age.  (2)  Mental 
Unsoundness.  (3)  Force  and  Frand.  (1)  Consanguinity  and  Affinity. 
(5)  Corporeal  Impotence.     (6)   Polygamy.     (7)  Miscegenation  .      112-151 

Sect,  II.  The  Marriage  Contract  itself.  (1)  Its  Essential  Elements: 
Assent,  Present  Words,  Freedom  from  Restraint.  (2)  Form  and 
Requisites  of  the  Contract,  Direct  Evidence,  Indirect  Evidence  ;  Pre- 
sumptions arising  from  Cohabitation,  General  Reputation,  Declarations 
of  the  Parties,  Recognition  by  the  Parties,  etc.  —  Validity  of  Foreign 
Marriages 151-159 


Division    II.  —  Annulment,    Dissolution,    and    Judicial 
Separation. 

Sect.  I.  Annulment 159 

Sect.  II.  Dissolution.  I.  Parties.  —  II.  Methods  of  Procedure,  includ- 
ing Rules  as  to  Alimony,  Counsel  Fees,  and  Expen.ses,  —  III.  Defences, 
(1)  Denial.  (2)  Recrimination.  (3)  Condonation,  (1)  Procure- 
ment. (5)  Connivance.  (6)  Collusion.  (7)  Delay  and  Statute  of 
Limitations.  —  IV.  Effect  of  the  Divorce.  (1)  Support  of  the  Wife, 
and  Rules  as  to  Permanent  Alimony.  (2)  Legitimacy  of  Children. 
(3)  Custody  of  Children.  (1)  Property  Rights.  (5)  Penal  Disabili- 
ties. —  V.  Effect  of  Foreign  Divorces.  (1)  Marriage  not  Performed 
in  the  State  where  Obtained.  (2)  Domicile  of  the  Parties  elsewhere. 
(3)  Defendant  absent  from  the  Jurisdiction.  (4)  Fraud  in  the  Pro- 
ceedings   .     ,     , 160-1S4 

Sect.  III.  Judicial  Separation.  I.  Cruelty.  —  11.  Desertion.  — 
III,  Procedure  in  the  Action 185-190 


Division    III,  —  The    Legal    Consequences    of    the    Marriage 

Relation. 

Sect.  I,  Husband's  Rights  in  the  Wife's  Property.  —  Subsect.  I.  At 
Common  Law.  (1)  Her  Real  Estate  Owned  in  Fee,  (2)  Estates  in 
Land  granted  to  the  Husband  and  Wife  after  Marriage,  (3)  Life 
Estates  in  Land.  (4)  Rights  of  Action.  (5)  Chattels  Real.  (6)  Tan- 
gible Personal  Property.  —  Subsect.  II.  Statutory  Changes.  —  INIarried 
Women's  Act  in  England  and  ISIarried  Women's  Acts  in  New 
York 191-198 

Sect.  II.  Obligations   which   the  Husband  assumes   by   the   Marriage, 


CONTENTS. 

PAGE 

Subsect.1.  To  pay  the  Wife's  Ante-nuptial  Debts  -SubsectIL  To 
Support  Her.  (1)  Where  the  Parties  Cohabit.  (2)  Where  the  Hus- 
baud  deserts  the  Wife.  (3)  Where  the  Wife  is  expelled  from  the 
Husband's  House.  (4)  Where  the  Wife  deserts  the  Husband  without 
Cause  (5)  Adultery  of  the  Wife.  (6)  Separation  by  Mutual  Con- 
sent —  Subsect.  III.  Liability  for  the  Wife's  Torts.  I.  Actionable 
Wrongs  before  iMarriage.  -  II.  After  Marriage.  —  Subsect.  IV.  Lia- 
bility for  the  Wife's  Crimes 198-206 

Sect.  III.  Capacity  of  the  Wife  to  make  Contracts.  —  Subsect.  I.  At 
Common  Law  —  Subsect.  II.  Special  Statutory  Rules  in  Xew  York  and 
England 206-215 

Skct.  IV.  The  View  taken  by  Courts  of  Equity  of  the  W^ife's  Separate 
Estate.  —  Separate  Use  Trust  and  Methods  of  Creation.     (1)  By  Ante- 

.  nuptial  Settlement.  (2)  Postnuptial  Settlement.  (3)  With  a  View  to 
Separation.  (4)  Other  Methods  than  a  Settlement.  —  Pin  Money 
Trust.  —  Rights  of  the   Wife  over  Property  held   for   her    Separate 


Use 


215-223 


Sect.  V.  Other  Rights  and  Disabilities.  —  Of  the  Wife  to  make  a  Will 
of  Real  or  Personal  Property.  —  Of  Either  to  the  Society  of  the  Other. 
—  Civil  Damage  Acts,  Principles  established  under  them. — Wife's 
Right  to  Protection  from  Violence.  —  To  the  Use  of  the  Husband's 
Surname.  —  Domicile  of  the  Husband  that  of  the  Wife.  —  Husband 
and  W'ife  as  Witnesses  for  and  against  Each  Other.  —  Wife's  Right  of 
Dower 223-232 


CHAPTER   VI. 

PARENT   AND   CHILD 233-267 

Division  I.  —  Legitimate  Children. 

Sect.  I.  Duties  of  Parents.  I.  INIaintenance.  —  II.  Protection.  — 
III.  Education.  —  Of  a  Mother  to  Maintain  her  Minor  Children  .      233-239 

Sect.  II.  Authority  of  Parents  over  Children.  1.  The  Right  of  Custody, 
Habeas  Corpus,  Rules  in  Equity.  —  II.  Right  of  Discipline  and  Train- 
ing. —  Right  to  the  Services  of  a  Minor  Child ;  Actions  for  Loss  of 
Service.  —  Lord  Campbell's  Act 239-251 

Sect.  III.  The  Relation  of  the  Child  toward  the  Parent.  I.  Status  or 
Domicile.  —  Rights  of  Child  as  such.  —  Duties  toward  Parents. 
(1)  Maintenance.     (2)  Protection 254-256 

Division  II.  —  Illegitimate  Children. 

I.  Where  the  ^Mother  is  Unmarried  both  at  the  Birth  and  Conception  of 
the  Child.  —  II.  W^here  the  Mother  is  Married,  but  the  Husband  is  not 
the  Father.  —  III.  Where  the  IMother  is  a  Widow  at  the  Time  of  the 
Child's  Birth.  —  Legal  Rights  and  Duties  of  the  Parents  of  Illegitimate 
Children.—  Status  of  an  Illegitimate  Child.  — Rules  of  Public  Policy. 
—  Establishment  of  Legitimacy  by  a  Direct  Legal  Proceeding.  —  Amer- 
ican Statutes 256-265 

Division  III.  —  Adopted  Children      .     .     .      265-267 


CONTENTS.  XI 


CHAPTER    VII. 

PAGE 

GUARDIAN    AND   WARD 268-283 

Sect.  I.  Rules  of  the  Roman  Law  as  to  Guardianship.  I.  Appointment. 
—  II.  Character  of  Duties.  —  III.  Accountability 268-270 

Sect.  II.  Kinds  of  Guardians  in  English  and  American  Law.  —  Those 
created  by  Law.  (1)  By  Nature.  (2)  By  Nurture.  (3)  In  Socage. 
(4)  By  Estoppel.  —  Those  Appointed.  (1)  Testamentary  Guardians. 
(2)  Those  appointed  by  Courts  of  Chancery.  (3)  Those  appointed  by 
Surrogate's  or  Probate  Courts.  (4)  Guai-dians  ad  litem  and  Special 
Guardians .      270-277 

Sect.  III.  The  Powers  of  Guardians,  as  to  the  Personal  and  Real  Estate, 
and  the  Person  of  the  AVard 277-280 

Sect.  IV.  Duties  of  Guardians.  (1)  To  make  Proper  Investments  of  the 
Ward's  Funds.  (2)  To  account  to  a  Court  of  Equity.  (3)  To  take  no 
Position  adverse  to  the  Ward's  Interests.  (4)  To  properly  Educate  and 
Train  the  Ward 280-283 


CHAPTER   VIII. 

INFANCY 284-303 

Sect.  I.  Infancy  considered  as  a  Status 284-286 

Sect.  II.  Capacity  of  Infants  to  make  Contracts.  I.  General  Rule.  — 
II.  An  Infant's  Capacity  to  Contract  for  Necessaries.  —  III.  Ratification 
by  an  Infant  of  Voidable  Contracts.  (1)  Conveyances  of  Real  Estate. 
(2)  Purchases  and  Leases  of  Real  Estate.  (3)  Sales,  ^Mortgages,  and 
Purchases  of  Personal  Property  and  Contracts  having  the  Element  of 
Mutuality.      (4)  Ratification  of  Indebtedness  incurred  during  Infancy. 

—  IV.    Disaffirmance  of    Contracts  during  Infancy  or  Afterwards.  — 
Right  to  Recover  back  Money  Paid.  —  Rescinding  Contract  of  Service. 

—  Who  can  take  Advantage  of  an  Infant's  Disability    ....      286-296 
Sect.   III.    Capacity  to  do  and   Perform   Civil   Acts   other   than    Con- 
tracts     _     296,297 

Sect.  IV.    Special    Rules   in    Courts   of   Equity   for   the    Protection  of 

Infants 297-300 

Sect.  V.   Statutory  Protection  to  Infants 300,  301 

Sect.  VI.  Liability  of  an  Infant  for  his  Torts 301,  302 

Sect.  VII.  Liability  for  Crimes 303 

CHAPTER  IX. 

THE  DOCTRINE  OF  STATUS  As  AFFECTING  THE  CAPACITY  OF 
PERSONS  OF  UNSOUND  MIND  (INCLUDING  IDIOTS  AND 
LUNATICS,  AS  WELL  AS  HABITUAL  DRUNKARDS  AND  PRODI- 
GALS)           304-312 

Sect.  I.  The  Jurisdiction  of  the  Court 305,  306 

Sect.  II.  The  Mode  of  Proceeding 306,  307 

Sect.  III.  The  Effect  of  the  Adjudication.  —  Status  of  Indians  .     .      307-312 


^j,-  CONTENTS. 


CHAPTER  X. 

PAGE 

MASTER   AND   SERVANT 313-349 

Division  I.  —  Slavery 313,  314 

Division  II.  —  Apprenticeship. 

Voluntary  and  Compulsory  Apprenticeship.  I.  Method  of  Creation  of 
Voluntary  Apprenticeship.  —  II.  Effect  of  the  Relation.  (1)  Rights 
and  Duties  of  the  Master.  (2)  Rights  and  Duties  of  the  Apprentice.  — 
III.  Remedies  for  Breach  of  the  Agreement.  —  IV.  Dissolution. 

Apprenticeship  under  American  Law.  I.  Rights  and  Duties  involved  in 
the  Relation.  —  As  between  the  Master  and  the  Apprentice.  —  Rights 
of  the  :\Iaster  as  to  Third  Persons.  —  As  between  the  Father  and  the 
Master.  —  II.  Dissolution.  —  III.  Compulsory  Apprenticeship  under 
the  Poor  Laws 315-323 


Division  III. — The  Law  of  Master  and  Servant  as  Arising 
OUT  OF  Contract. 

Sect.  I.  The  Relation  itself 323-325 

Sect.  II.  Rights  and  Duties  involved  in  the  Relation  as  between  the 
Parties.  I.  The  Duties  of  the  Servant  toward  the  Master.  (1)  To 
continue  in  the  Service  during  the  Employment.  (2)  To  possess  suf- 
ficient Skill  to  Perform  the  Service  Undertaken.  (3)  To  refrain  from 
Acts  of  Misconduct  subversive  of  the  Contract.  (4)  To  respond  to 
the  blaster  in  Damages  for  Injuries  caused  by  a  Breach  of  Duty.  — 
IL  Duties  of  the  ]\Iaster  toward  the  Servant.  (1)  To  continue  him  in 
Service.  (2)  To  use  Due  Cai-e  in  furnishing  Tools,  etc.  (3)  To  use 
Reasonable  Care  in  the  selection  of  Co-servants.  —  Contributory  Negli- 
gence of  the  Servant.  —  Acts  which  the  Master  is  not  Bound  to  do  as 
between  him  and  his  Servant 325-336 

Sect.  III.  Rights  of  Third  Persons  against  the  Master.  I.  Where  the 
Master  is  under  a  Contract.  —  II.  Duties  of  the  Master  toward  Stran- 
gers. (1)  Servant  must  be  under  the  Control  of  the  Master.  —  Con- 
tractors. (2)  Employment  must  be  Voluntary.  (3)  Act  must  be 
■within  the  Scope  of  the  Employment.  (4)  Master  must  owe  a  Duty  to 
the  Person  injured 336-343 

Sect.  IV.  Rights  of  the  Master  against  Third  Persons.  (1)  Torts  com- 
mitted against  the   Servant.      (2)    Seduction  of   a  Female   Servant. 

(3)  Enticement  of  a  Servant 343-345 

Sect.  V.  The  Relation  of  the  Servant  to  Third  Persons.  I.  His  Rights. 
—  n.  His  Liability.  —  Acts  of  Service  done  Abroad  brought  in  Ques- 
tion here.  —  Gratuitous  Service 345-349 


CONTENTS.  Xlli 


CHAPTER   XI. 

PAGE 

CORPOEATIONS 350-414 

Divisiox  I.  —  General  Rules  applicable  to  all  Corporations. 

Sect.  I.   Classification  of  Corporations 350-354 

Sect.  II.  The  Creation  of  Corjjorations 354-356 

Sect.  III.  The  Powers  of  Corporations.  I.  The  Doctrine  of  Ultra 
Vires.  —  II.  Powers  as  to  Succession  of  Members,  including  Amotion 
and  Disfranchisement.  —  III.  Power  to  make  By-Laws.  —  IV.  Power 
to  make  Contracts.  —  V.  Capacity  to  commit  Torts.  —  VI.  Capacity 
to  acquire  Lands  and  other  Property,  and  to  dispose  of  the  Same. 
(1)  To  acquire  Land  in  a  Manner  other  than  by  Will.  (2)  To  acquire 
by  Will  at  Common  Law  and  under  New  York  Statutes.  (3)  The  Right 
of  Disposal.  —  VII.  The  Right  and  Capacity  of  a  Corporation  to  Sue 
and  to  be  Sued.  —  VIII.  Special  Questions  as  to  the  Powers  of  Corpo- 
rations.    (1)  The  Question  of  Status.     (2)   Corporations  as  Trustees. 

(3)  Construction  of  Corporate  Charters 356-384 

Sect.  IV.  The  Visitation  of    Charitable  Corporations.     (1)  Charitable 

Funds  held  for  General  Purposes.     (2)   Special  Trusts   ....      384-389 
Sect.  V.  Judicial  Control  of  Corporations.     (1)   The  Relation  of  Corpo- 
rate Trustees  to  the  Corporation.     (2)    The  Position  of  Trustees  or 
Directors  toward  Third  Persons,     (3)  The  Rights  of  Third  Persons 
against  the  Corporation  for  the  Misconduct  of  its  Trustees  or  Directors 

(4)  Remedies   of    the    Corporation    against    its    Directors    for    Mis- 
conduct           „     .      389-398 

Sect.  VI.  Dissolution.  I.  By  Death  or  Removal  of  all  of  the  Members. 
—  II.  By  Act  of  the  Legislature.  —  III.  By  Surrender  of  Corporate 
Rights.  —  IV.  By  Adverse  Judicial  Decree.  (1)  Lender  the  Common 
Law.  (2)  As  a  Statutory  Remedy.  —  V.  Effect  of  Dissolution.  (1)  In 
a  Court  of  Common  Law.  (2)  In  Courts  of  Equity  and  by 
Statute 398-405 


Division   II.  —  Special   Rules   applicable   to    Stock  Corpora- 
tions. 

Sect.  I.  Subscriptions  for  Stock  and  Assessments 406-408 

Sect.  II.  The  Nature  of  Stock .     408,  409 

Sect  III.  The  Power  of  the  Corporation  over  its  Stock     ....     409,  410 
Sect.   IV.    The   Rights  of    Stockholders.      (1)    To  Vote  for  Directors. 
(2)  To  receive  Dividends.     (3)  To  call  Directors  and  Corporation  to 

account  for  Mismanagement.     (4)  On  Dissolution 410-412 

Sect.  V.    Liability  of  the  Corporation,  Stockholders,  and  Directors  to 
Creditors 412-414 


CONTENTS. 


BOOK    II. 

THE  LAW  OF  PERSONAL  PROPERTY. 


PART    I. 


PROPERTY  IN   GENERAL  AND  THE  LIMITATIONS  TO  ITS 

OWNERSHIP. 


CHAPTER   L 

PAGE 

THE  NATURE   OF   PEOPERTY 415-418 


CHAPTER   IL 

THE    DISTINCTION    BETWEEN    REAL    AND    PERSONAL    PROP- 
ERTY  419,420 


CHAPTER   HL 

THINGS   NOT   THE   SUBJECT   OF   PRIVATE  OWNERSHIP.     .      421,422 

CHAPTER  IV. 

THE  QUALIFICATIONS   OF   OWNERSHIP.    .     .      423-438 

Sect.  I.  Theft  or  other  Wrongdoing 423,  424 

Sect.  II.  Taxation 424, 42.5 

Sect.  HI.  Eminent  Domain 425-430 

Sect.  IV.  Public  Necessity 430,  431 

Sect.  V.  Regulation  or  Destruction  of  Private  Property  under  the  so- 
called  Police  Power.  I.  The  Relation  of  the  Exercise  of  this  Power 
to  Constitutional  Provisions.  —  II.  Instances  of  the  Valid  Exercise  of 
the  Police  Power.  — III.  Instances  of  the  Unwarranted  Exercise  of  the 
Police  Power 431-438 


CONTEXTS.  XV 

PART   II. 

DISTINCTIOXS   PECULLIR  TO   PERSOXAL  PROPERTY. 
CHAPTER  I. 

PAGE 

ATTRIBUTES    OF    OWNERSHIP,    INCLUDING    THE    POWER    TO 

USE,   SELL,   EXCHANGE,  ETC 439-446 

Sect.  I.  The  Power  to  Sell  or  Exchange   .........      43     441 

Sect.  II.  The  Right  to  Abandon 441 

Sect.  III.  The  Power  to  Dispose  of  Property  by  Will 441-443 

Sect.  IV.   Succession  to  the  Property  of  an  Owner  dying  Intestate     443-446 

CHAPTER   II. 

THE  DISTINCTION   BETWEEN   CORPOREAL  AND  INCORPOREAL 

PERSONAL   PROPERTY 447,448 


CHAPTER   III. 

VARIOUS   DISTINCTIONS   OF   OWNERSHIP  .      .  449-467 

Sect.  I.  Absolute  and  Qualified  Ownership 449-4.56 

Sect.  IT.  Equitable  and  Legal  Ownership 4.56-458 

Sect.  III.  Separate  and  Co-ownership.     (1)  Joint  Tenancy.     ("2)  Ten- 
ancy in  Common.  —  Partition ....  458,  459 

Sect.  IV.  Future  Estates  in  Personal  Property.  —  Powers.  —  Suspension 

of  the  Ownership  of  Personal  Property 460-467 


PART  III, 

TITLE   TO   PERSOXAL  PROPERTY. 
CHAPTER   I. 

TITLE   BY   ORIGINAL  ACQUISITION.   .     .     .     469-554 
Drvnsiox  I.  —  Title  by  Capture. 

Sect.  I.  Booty 469-471 

Sect.  [T.  Prize 471. 472 


^y^  CONTENTS. 

Division  II.  —  Title  by  Finding. 

PAGE 

^      Sect.  I.  Finding  on  Land.  -  Treasure  Trove.  -  Estrays.  -  Wrecks    472-478 
/      Sect.  II.  liudnagatoea 


Division  III. —Title  by  mere  Occupancy   ....  480 

Division  IV.— Title  by  Accession. 

^       Sect.  I.  The  Ownership  of  the  Young  of  Domestic  Animals 481 

^    Sect.  II.  Additions  by  Labor  or  by  the  Use  of  New  Materials  .     .      482-486 

Division  V.  —  Title  by  Confusion    .     .     .     486,  487 

Division  VI.  —  Title  to  Incorporeal  Things  by  Mental  Action, 
including  the  Appropriation  of  Trademarks. 

Sect.  I.  Title  to  Literary  Property.  I.  At  Common  Law.  (1)  Literary 
Compositions  in  General.  —  Plays.  (2)  Letters.  (3)  Pictures  and 
Statues.  (4)  Miscellaneous  Cases.  (5)  Breaches  of  Trust  or  Confi- 
dence.—II.  Literary  Property  as  Protected  by  Statute,  or  Copyright. 
(1)  Theory  and  Nature  of  Copyright.  (2)  Who  may  take  a  Copyriglit 
under  the  United  States  Laws.  (3)  The  Subject  of  a  Copyright  and 
the  Laws  under  which  it  is  Granted.  (4)  The  Mode  of  Acquiring  a 
Copyright.  (5)  Term  of  Copyright  and  Renewal.  (6)  Assignment. 
(7)  Infringement 488-505 

Sect.  II.  Title  to  the  Products  of  Invention  and  Discovery.  I.  To  w^hom 
the  Patent  should  be  Granted.  —  Claim  for  a  Patent  for  Improvements. 

—  Invention  described  in  a  Printed  Publication  either  Here  or  in  a 
Foreign  Country.  —  Invention  first  Patented  in  a  Foreign  Country.  — 
Invention  Known  or  Used  by  Others  in  this  Country.  —  Invention  or 
Discovery  suffered  to  go  into  Public  Use  by  Inventor  or  Discoverer.  — 
Abandonment. — II.  The  Subject-matter  of  a  Patent.  (1)  What  is 
not  Patentable.  (2)  What  is  Patentable.  —  III.  Proceedings  in  the 
Patent  Office  to  obtain  a  Patent,  to  Correct  Defects,  to  Secure  a  Re- 
issue, and  to  Determine  Questions  of  Interference.  —  The  Specification. 

—  Claim  and  Disclaimer.  —  Surrender  and  Reissue.  —  Interference 
Cases.  —  Appeal  in  Cases  other  than  Interference  Cases.  —  Special 
Matters  concerning  the  Issue  of  a  Patent.  (1)  Abandonment  after 
Filing  Application.  (2)  Rights  of  Assignee  of  Inventor.  (3)  Death 
of  Inventor  before  Patent  Issued.  —  IV.  Substantive  Rights  acquired 
under  a  Patent.  (1)  The  Patent  itself.  (2)  Derivative  or  Subordinate 
Rights:  1.  Renewal  or  Extension;  2.  Rules  governing  Assignments, 
Licenses,  etc  ;  (3)  Infringement.  —  V.  Remedies.  (1)  Cases  in 
which  the  Patent  is  Attacked:  1.  Proceedings  by  the  United  States; 
2.  Proceedings  under  the  Revised  Statutes  by  an  Individual  to  Vacate 
the  Patent.  (2)  Remedies  by  the  Patentee  :  1.  Actions  in  a  Court  of 
Law,  Defences  of  prior  Public  Use,  Abandonment,  Want  of  Novelty; 

2.  Suits  in  Equity '    .     .     .     .      505-540 

Sect.  III.  Title  to  Trademarks  by  Appropriation.  —  Preliminary. 
I.  The  Nature  of  a  Trademark  and  the  Ownership  of  it.  —  II.  Trade- 


CONTENTS.  xvii 


PAGE 


marks  at  Common  Law  and  by  Statute.  (1)  At  Common  Law.  (2)  By 
Statute. —  in.  What  constitutes  a  Valid  Trademark.  (1)  Name  of 
the  Manufacturer  or  Seller.  (2)  Name  of  the  Place  of  Origin.  (3)  Use 
of  the  word  "  Patent  "  where  the  Subject  is  not  Patented.  (4)  Arbi- 
trary Expressions.  (5)  Title  of  a  Book.  (6)  Device  or  Label.— 
IV.  Assignment  of  a  Trademark.  —  V.  Trademarks  as  affected  by  the 
Sale  of  the  Business,  including  the  Dissolution  of  a  Partnership. 
(1)  Goodwill.  (2)  Brands.  (3)  Statement  by  the  New  Trader  of  having 
been  with  the  Old  Firm.  (4)  Where  the  Trademark  contains  the  Name 
of  One  of  the  Partners.  —  VI.  Infringement,  Injunctions  for.  (1)  Plain- 
tiff must  Apply  with  Clean  Hands.  (2)  ]\Iust  be  an  Imitation. 
(3)  Effect  of  Delay.  (4)  Color  of  Device  not  taken  into  Account. 
(5)  Injunction  may  Extend  to  Third  Persons. —VIL  Kegistration  of 
Trademarks.  —  Criminal  Legislation .      540-554 


CHAPTER   II. 

TITLE  BY  ACT   OF  THE  LAW 555-668 

Divisiox  I.  —  Forfeiture 555-557 

Division  II.  —  State  Succession  or  Escheat    .     .     .557 

Division  III.  —  Taxation 558 

Division  IV. —  Eminent  Domain 559 

Division  V.  —  Title  by  Judgment, 
(1)  Judgments  in  personam.     (2)  Judgments  in  rem 560-562 

Division  VL— Title  from  a  Failing  Debtor. 

Sect.  I.  Voluntary  Assignments  and  Composition  Deeds.  L  Voluntary 
Assignments.  —  Preferential  Assignments.  (1)  Validity  of  Assign- 
ment. (2)  Its  Nature  and  Effect.  —  Non-preferential  Assignments.  — 
II.  Composition  Deeds 56'^-566 

Sect.  II.  Bankruptcy  and  Insolvency  Proceedings.  (1)  The  Court  hav- 
ing Jurisdiction  and  its  Officers.  (2)  Kinds  of  Bankruptcy.  —  Volun- 
tary Bankruptcy.  —  Involuntary  Bankruptcy.  (3)  Proceedings  to 
Piealize  the  Estate,  Duties  of  the  Assignee,  the  Adjustment  of  Claims, 
and  the  Distribution  of  Assets.  (4)  Proceedings  peculiar  to  Partner- 
ships and  Corporations.  (5)  The  Discharge.  (6)  Fraud  as  an  Element 
in  Bankruptcy  Proceedings.  (7)  The  Mutual  Relation  of  the  State  and 
Federal  Courts  in  Cases  of  Bankruptcy.  —  Insolvency  under  State 
Laws.  —  Rights    of    Foreign    Assignees    in    Bankruptcy    or    Insol- 

^e"^?' 567-581 

b 


xviii  CONTENTS. 

Division  VII. —  Title  by  Succession. 

PAOX 

Sect.  I.  Title  by  Will.  I-  The  Origin  of  the  Power  to  make  Wills  of 
Personal  Property.  —  II.  Capacity  to  make  a  Will.  —  Want  of  Age.  — 
iMental  Unsoundness.  —  Undue  Influence.  —  Coverture.  —  III.  The 
Nature  and  Requisites  of  a  Will  or  Testament.  —  Mode  of  Execution 
in  England  and  generally  in  the  United  States.  —  Attestation  Clause. 

—  IV.  Revocation.     (1)  Express  Revocation.     (2)  Implied  Revocation: 

1.  Inconsistent  later  Wills  and  Codicils;  2.  Subsequent  Marriage  and 
Birth  of  Issue;  3.  Statutory  Provisions  working  Revocation.  —  Non- 
revocable  Wills.  —  V.  Revival  and  Republication.  —  VI.  Probate.  — 

VII.  The  Construction,  Operation,   and  Effect  of  a  Will.     Rules.  — 

VIII.  Legacies.     (1)  Kinds  of  Legacies:  1.  Specific  ;  2.  Demonstrative; 

3.  General.  —  Cumulative  and  Substitutionary  Legacies;  Rules  for 
Determining.  (2)  Ownership  or  Right  of  the  Legatee.  —  Vested  and 
Contingent  Legacies.  — Absolute  and  Conditional  Legacies.  —  Qualified 
Ownership   in  Legacies.     (3)  Incidents   to   Legacies:    1.    Abatement; 

2.  Ademption;  3.  Satisfaction  in  General,  and  between  Parent  and 
Child,  and  Double  Portions,  Rules  as  to.  (4)  Legacies  charged  upon 
Land.     (5)  Void   Legacies:    1.  Illegality;  2.  Fraud;  3.    Uncertainty; 

4.  Want  of  Capacity  to  Bequeath;  5.  Incapacity  of  the  Legatee  to 
Take.—  Corporations.  —  Charities.  —  Individual  Legatees;  6.  Effect  of 

a  Void  Legacy 581-638 

Sect.  II.  Succession  in   Case  of   Intestacy.  —  Advancements.       (1)  To 

Descendants.  (2)  To  a  Wife  —  Domicile  as  affecting  Distribution  638-643 
Sect.  III.  Executors  and  Administrators.  I.  Distinctions  peculiar  to 
Executors  (1)  Bonds  not  Required.  (2)  Title  dates  from  Death. 
(3)  In  Absence  of  Statute  may  Bequeath  Office.  (4)  Executor  de  son 
tort.  (5)  When  an  Infant  or  Married  Woman,  etc.  — 11.  Distinctions 
applicable  to  Administrators.  (1)  Cum  testamento  annexo.  (2)  De  bonis 
nan.  (3)  Durante  absentia.  (4)  Durante  minore  cetate.  (5)  Pendente 
lite. — in.  Rules  common  to  both  Executors  and  Administrators; 
Duties  of.  (1)  To  Bury  the  Deceased.  (2)  To  Collect  the  Assets  and 
Pay  the  Debts.  —  Real  Estate  as  Assets.     (3)  Payment  of  Legacies. 

—  Interest  on  Legacies.  —  Succession  Duties  or  Taxes.  (4)  Distribu- 
tion of  the  Estate.  (5)  Management  of  the  Estate:  1.  Contracts  of 
Personal  Representatives;  2.  Continuing  the  Business  of  the  Decedent; 

3.  Care  and  Preservation  of  the  Estate;  {a)  Duty  to  Insure,  {b)  Conver- 
sion of  Assets,  and  Investments,  (c)  Liability  for  Waste.  —  Liability  of 
one  of  several  Executoi's.  —  IV.  Judicial  Proceedings.  (1)  Adminis- 
tration Suits.  (2)  Administration  in  the  Probate  Courts.  —  V.  Ancil- 
lary Administration 643-668 


Index 671 


TABLE   OF   CASES. 


PAGE 

A.  V.  B.  147 

Abbot  V.  Bayley  210 

Abel  r.  Pres.,  etc.  Del.  Canal  Co.  329 

Abenciroth  v.  Manhattan  Ry.  Co.  4'J8 

Abernethy  v.  Hutcliinson  41*2 

Ableman  v.  Booth  100 

Abraham  v.  Plestoro  580 

Abrahams  v.  Deakin  340 

Abrath  v.  North  Eastern  Ry.  Co.  369 

Abshire  v.  Cline  83 

Ackerman,  Matter  of  234 

Adair  v.  Brimmer  292 

V.  Shaw  196,  645,  646 

V.  Young  534 

Adams  v.  Adams  619 

V.  Adams'  Adm.  347 

V  Bellaire  Stamping  Co.  515 

V.  Bridgewater  Iron  Co.  539 

I'.  Burke  526 

V.  Burton  451 

V.  Fitzpatrick  326 

V.  Gamble  224 

V.  Gt.  W.  R.  R.  Co.  382 

V.  Howard  529 

V.  Lavender  625 

V.  Meyrose  530 

V.  Miller  320 

V.  State  456 

V.  Tiie  People  122 

V.  Thomas  309 

Addison  v  Bowie  235 

Additon  v.  Smith  610 

Adee  v.  Thomas  529 
Adriance  v.  Lagrave                         110,  112 

Agar-Ellis  v.  Lascelles  246 

Ah  King  v.  People  65 

Ahrenfeldt  v.  Ahrenfeldt  188 

Aird's  Estate,  In  re  627 

Airey  v.  Bower  6 

Alaska,  The  253 

Albany  Fire  Ins.  Co.  v.  Bay  209 

Albro  (;.  Jaquith  346 

Alden  Evap.  Fruit  Co.  v.  Bowen  515 

Alderson  v.  Maddison  597 

Alexander  v.  Angle  86 

V.  Morse  551 

Alexander's  Cotton  470 
Allen  V.  Allen                           176,  290,  597 

V.  Blunt  534 

V.  Maddock  588 

V.  M'Pherson  600 

V.  Rawson  508 

V.  State  473 

AUentown  v.  Kramer  367 


PAGE 

Allison  V.  Norwood 

321 

Allsop  V.  AUsop 

86 

Alsager  v.  Rowley 

665 

Althorf  V.  Wolfe 

25 

325 

Alton  V.  Midland  Ry.  Co. 

344 

Am.  Bell  Telephone  Co.  v. 

Dolbear 

516 

Ambrose  v-  Kerrison 

202 

American  Bank  Note  Co.  v 

N.  Y.  E. 

Ry.  Co. 

429 

American  Fertilizing  Co.  v. 

Boai 

dof 

Agriculture 

129 

American  Print  Works  v.  L 

awrence 

430, 

559 

Amey's  Appeal 

348 

Amor  I'.  Fearon 

327 

Amory  v.  Flyn 

476 

Amoskeag  Bank  v.  Ottawa 

24 

Am.  Ry.  Frog  Co.  v.  Haven 

364 

Amy  V.  Dubuque 

23 

Anderson  v.  Anderson 

310, 

602 

604 

V.  Cuilen 

201 

V.  Goldsmith 

212 

Andover  Turnpike  Corp.  v. 

Gould 

408 

Andres  i-.  Koppenheafer 

83 

Andrews,  In  re 

243 

273 

Andrews  v.  Hovey 

511 

538 

V.  Partington 

236 

V.  Salt 

243, 

245 

246 

V.  Shaffer 

209 

V.  State 

58 

Andrina,  The 

480 

Angermann  v.  Ford 

617 

Angus  V.  Clifford 

394 

Annin  v.  Wren 

508 

527 

Ann  L.  Lockwood,  The 

479 

Anon. 

86,87 

186 

Ansonia  Co.  v.  Electrical  Su 

pply 

Co. 

513 

Anstice  v.  Brown 

133 

Anthony  v  Anthony 

186 

I'.  Rice 

183 

Apollinaris  Co.  v.  Norrish 

546 

Applebee  v.  Percy 

343 

Archenbrown,  Re 

570 

Arkansas  Cattle  Co.  v.  Mann 

481 

Arkwright  v.  Newbold 

393 

Armit's  Trusts,  In  re 

298 

Armory  v.  Delamirie 

475 

Armstrong's  Appeal 

610 

Armstrong  v.  The  People 

250 

Armytage  v.  Wilkinson 

614 

Arnison  v.  Smith 

392 

Arnold  v.  Hudson  Riv.  R.  R 

.  Co. 

428 

Aronheimer  i\  Stokley 

434 

Aronson  v.  Fleckenstein 

490 

XX 


TABLE    OF   CASES. 


Arrowsmith  v.  Hornmening 
Asliburner  c.  Macguire 
Ashbury  Ky.,  etc.  Co.  v.  Riche 
Asliby  r.  Ashby 

V.  Wliite 

Asher  v.  Texas 

Ashton  V.  Lord  Langdale 

Askew  V.  Tliompson 

Assop  V.  Yates 

Astbury  r.  Beasley 

Aston  V.  Wood 

Atcliison,  &c.  R.  K  v.  Weber 

Atchlev  r.  Sprisrg 

Atbol  Music  Hall  Co.  v.  Carey 

Atkin  V.  Acton 

Atkinson,  In  the  Goods  of 

Atkinson  v.  Denby 

V.  Medford 

V.  Rochester  Printing  Co. 

Atlanta  Ry.  Co.  v.  Kimberley 


PAGE 

7 
621 
360 
193 
345 
21,  129 
635 
655 
380 
662 
622 
253 
174 
406 
327 
591 
566 
143 
457 
339 


PAGE 

535 

660 

320 

517 

612 

61 

649 

163,  169,  225,  247 

292 

620,  621 

277 


Atlantic  Giant  Powder  Co.  v.  Hulings  522 


Atlantic  Works  v.  Brady 
Attree  i'.  Hawe 
Atwood  V.  Holcomb 
Atty-Gen'l  v.  Alexander 

V.  Alford 

V.  Browne's  Hospital 

V.  Brunning 

V.  Chelsea  Water- Works 

V.  Corporation  of  Bedford 

V.  Dixie 

V.  Fishmongers  Co. 

V.  Higham 

V.  Kohler 

V.  Kwok-a-Sing 

V.  Lubbock 

1-.  Magdalen  Coll. 

I'.  Middleton 

V.  Partington 

V.  Robins 

V.  Siddon 

V.  St.  Cross  Hospital 

I".  Stewart 

I'.  Vernon 

V.  Wilson 

Auburn  Bolt  Works  v.  Shultz 

Augerstein  v.  Jones 

Austin  V.  Austin 
State 


508,  514 
635 
247 
381 
664 
388 
648 
35 
388 
388 
634 
651 
476 
113 
388 
388 
388 
195 
617 
341 
388 
634 
536 
390 
406 
329 
245,  246 
433 
Australia,  London  Chartered  Bank 

of,  V.  Lempriere  224 

Avelyn  v.  Ward  611 

Avery  v.  Everett  78,  161,  637 

Ayer  v.  Chase  321 

Ayers,  In  re  381 

Aymar  v.  Roff  281 


B.  &  O.  R.  R.  Co.  V.  Glenn 
Bach  I'.  Longman 
Backhaus  ".  Sleeper 
Badger  v.  Badger 

V.  Phinney 

Baggett  V.  Meux 
Bagg's  Case 
Bagshaw  v.  Seymour 


Bailey,  E.r  parte 
Bailey  v.  Gould 

V.  King 

. V.  Roberton 

Baillie  v.  Butterfield 
Bain,  Ex  parte 
Bain  v.  Sadler 
Baker  v.  Baker 

V.  Disbrow 

V.  Farmer 

V.  Lorillard 

V.  Meisch 

V.  Sampson 

V.  Taylor 

V.  Union  Mut.  Life  Ins.  Co. 

Balch  V.  Smith 

Baldwin  v.  Bank  of  Newbury 

V.  Casella 

V.  Franks 

r.  Hale 

V.  St.  Louis  Ry.  Co. 

Ball  V.  Burleson 

V.  Harris 

Ballard  v.  Burgett 

Ballerger  v.  McLain 

Ballin  v.  Dillaye 

Baltimore  Elevator  Co.  v.  Neal 

Banbury  Peerage  Case 

Bancroft  v.  Thayer 

Banda  &  Kirwee  Booty  Case 

Bank  v.  Weems 

Bank  of  Africa   v.    Salisbury 

Mining  Co. 
Bank  of  Augusta  v.  Earle 
Bank  of  Chenango  v.  Brown 
Bank  of  Ontario  v.  Lambe 
Bank  of  Redemption  v.  Boston 
Bank  of  U.  S.  v.  Davis 

V.  Halstead 

Banker  v.  Caldwell 
Banks  v.  Gibson 

V.  Manchester 

Barber  v.  Barber 

I'.  Root 

Barclay  v.  Smith 
Barden,  In  the  Goods  of 
Barden  v.  Keverberg 
Bardwell  v.  Purrington 
Barfield  v.  Nicholson 
Barker,  Matter  of 
Barker  v.  Rayner 

V.  The  People 

Barlow's  Will,  In  re 
Barnardo  r.  McHugh 
Barnes  v.  Allen 

V.  Barnes 

V.  Keene 

Barnesley  v.  Powell 

Barnett  v.  Allen 

Barnum  v.  Barnum 

Baron  Penedo  v.  Johnson 

Baroness  Wenlock  r.  River  Dee  Co 

Barony  of  Saye  and  Sele 

Barr  v.  Fewkes 


Barrere  v.  Barrere 
Barret  v.  Beckford 


484 

203 

501 

211 

319 

578 

343,  452 

553 

577,  578 

333 

213 

629 

424 

822 

207 

332,  334 

173,  261 

435 

469,  470 

457 

Gold 

409 
352,  381 
29 
43 
76 
368 
22 
497 
550 
497 
230 
177,  181 
447 
600 
210 
285,  321 
491 
311,  363 
621,  622 
69 
311 
202 
22.'') 
163,  167,  175 
250 
643 
86 
156 
377 
360 
261 
638 
189,  190 
625 


TABLE  OF  CASES. 


xxi 


Barrett  v.  Davis 

I'.  Dolan 

V.  Failing 

Barron  v.  Burnside 

Barrs  v.  Jaciison 

Barry,  Ex  parte 

Barry  v.  Equitable  Life  Assur.  Soc. 

V  Lambert 

Barth  v.  Backus 
Bartholonaew  r.  Finnemore 

V.  Sawyer 

Bartlett  v.  Drake 

V.  Muslinar 

f.  Wells 

Bartlette  v.  Crittenden 
Bartley  v.  Riciitmyer 
Barton  r.  Higgins 
Barton's  Trusts,  In  re 


PAGE 

221 
228 
177 
75,  353 
647 
100 
212 
647 
580 
294 
50'J 
294 
157 
287 
488,  492 
249 
647 
618 

Bartonshill  Coal  Co.  v.  Reid  330,  331 

Baruch,  Matter  of  109 

Barwick  v.  English  Joint-Stock  Bank  394 
Batcheler  v.  Fortescue  252 

Bate  V.  Graham  411 

Bates  V.  Mackinley  618 

V.  Shraeder  192 

Battell  V.  Torrey  279 

Batthews  v.  Galindo  231 

Batty  V.  Moaks  317 

Bawdon  v.  Bawdon  162 

Baxter  v.  Burfield  316,  317 

Bayard,  Matter  of  70 

Bayer  v.  Phillips  277 

Baylies  v.  Curry  130 

Baylis  v.  Baylis  170 

Bazeley  r.  Forder  239 

B  C.  &  N.  Y.  R.  R.  V.  Pottle  407 

Beach  v.  Beach  211 

V.  Schmultz  487 

V.  Trudgain  430 

Beadleston  v.  Beadlestoa  166 

Bead  V.  Bealls  265 

Beamish  v.  Beamish  153,  154 

Bean  v.  Edge  424 

Beard  v.  Westcott  615 

Beardsley  v.  Hotchkiss   273,  291,  295,  298 

V.  Johnson  364 

Beattie  v.  Lord  Ebury  392 

Beauclerk  v.  Beauclerk  170 

Beaufort  v.  Berty  273 

Beaumont  v.  Oliveira  633 

Beavan  v.  Lord  Hastings  644 

Beazley  v.  Soares  549 

Becker  v.  Hastings  622 

Beckham  v  Drake  328 

Becleford  v.  Tobin  656 

Bective  v.  Hodgson  637 

Bedell  v.  Bedell  18!t 

Bedford  v.  Bagshaw  393 

Beebe  v.  Estabrook  641 

Beecher  Mfg  Co.  v.  Atwater  Mfg.  Co.  508 
Beekman  v.  Bonsor  133 

Beer  v.  Foakes  565 

Beer  Co.  v.  Massachusetts  432 

Beeston  (;   Collyer  326 

Belding  v.  Turner  527 

Bell's  Case  402 


Bell  V.  Stocker 

PAOE 

200 

Bellairs  v.  Tucker 

394 

Bellamy,  In  re 

196 

Bellasis  v.  Uthwatt 

624 

Bellows  V.  Hallowell  &  Augusta 

Bant 

405 

Bengough  v   Walker 

624 

Benliam  v   Bishop 

292 

Bennac  v.  People 

98 

Benner  v.  Puffer 

424 

Bennett's  Estate 

628 

Bennett  v.  Bennett 

21£ 

,225 

V.  Byrne 

275 

V.  Davis 

297 

V.  Smith 

225 

Benson  v  McMahon                113, 114 

,  115 

Bentley  v.  GrifBn 

201 

Benyon  v  Benyon 

612 

Benzing  y    Steinway  &  Sons 

333 

Berger  v.  Varrelmaun 

564 

Bergold  v.  Puchta 

85 

Berley  v.  Rampacher 

200 

Bernina,  The 

252 

Berolles  v.  Ramsay 

288 

Berrigan  v.  N.  Y.  Lake  Erie  Ry. 

Co. 

329 

Berringer  v.  Great  Eastern  Ry. 

Co. 

344 

Berry  v.  Cutts 

564 

Bertholf  v.  O'Reilly 

42 

,227 

Bertles  r.  Nunan 

197 

,206 

Besant,  In  re 

243 

,246 

Besondy,  Re 

2.34 

Besozzi  V.  Harris 

452 

Besset,  Ex  parte 

95 

Bethell  v.  Green 

653 

Bethune  v.  Bethune 

185 

Bethurum,  Ex  parte 

55 

Betsinger  v.  Chapman 

156 

Betts  V.  Carroll 

294 

V.  Harper 

697 

V.  Kimpton 

195 

r.  Lee 

484 

V.  Menzies 

518 

Bevan  v.  Cooper 

628 

Beveridge  v.  Minter 

231 

V.  N.  Y.  El   R.  R.  Co. 

367 

Beverley's  Case 

308 

Beverlin  v.  Beverlin 

154 

Bibb  V.  Thomas 

592 

594 

Bibb's  Adm.  V.  N.  &  W.  R.  R.  C 

0. 

837 

Bicknell  v.  Todd 

627 

BifBn  V  Bignell 

204 

Bigelow  V   Grannis 

293 

V.  Huntley 

424 

Biggs  V.  Peacock 

460 

V.  Terry 

244 

Billings  17.  Robinson 

407 

Bindley  v.  MuUoney 

217 

Binney  v.  Annan 

535 

Binstead  v.  Buck 

450 

Birch  V.  Birch 

186 

Bird  V.  Bird 

177 

V.  Gibb 

480 

Birkett  v.  Knickerbocker  Ice  Co 

252 

Birtwhistle  v.  Vardill 

2.59 

Bisbey  ?;.  Shaw 

92 

Bischoff  V.  N  Y.  El.  Ry.  Co. 

429 

Biscoe  V.  Kennedy 

199 

xxu 


TABLE  OF  CASES. 


Bishop  V.  Bishop 

V.  Globe  Co. 

Bissell  V.  Bissell  ,  „   „  r.    . 

V.  Mich.  So.  &  N.  I.  R.  R.  Co.'s 

Bissett  r.  Antrobus 

Bitter  i'.  Katiimaii 

Black  V.  Henry  G  Allen  Co. 

. I'.  Munson 

IV  Murray 

Blackburn  Bklg.  Soc.  v.  Cunliffe 
Blackstock  v.  N.  Y.  &  Erie  R   R-  Co. 
Blackstone    Mfg.    Co.    v.   Inhab.   of 

Blackstone 
Blades  r   Higgs 

Blaechinska  v.  Howard  Mission 
Bhigrovc  V.  Coore 
Blake  v.  Barnes 

i;.  Blake 

r.  Ferris 

. V.  Lanyon 

v.  San  Francisco 

Blanc  i:  Blanc 
Blanchard  v.  Hill 
r.  Sprague 

Blandford  v.  State 
Blann  v.  Bell 
Bleck  V.  Bleek 
Bliss'  Petition 
Blofield  V.  Payne 
Blomf3eld  v.  Eyre 

Blood  V  Humphrey 

Bloodgood  (•  Mohawk,  &c.  R.  R. 

Bloomingdale  v.  Lisberger 

Blossom  I'.  Barrett 

Blotz  V.  Rohrbach 

Blowers  v.  Sturtevant 

Bloxam  v.  Elsee 

V.  Favre 

Blundell's  Trusts,  In  re 

Blunt  V.  Patten 

Blydenburgh  v.  Miles 

Blyew  V.  Commonwealth 

Board  of  Education  v.  Minor 

Boardman  v.  Boardman 

V.  L.  S.  &  M.  S  R  R.  Co. 

Boast  V.  Firth 

Boddy  I'.  Lefevre 

Bogardus  v.  Trinity  Church 

Bogert  r.  Indianapolis 

Boggett  V.  Frier 

Bohm  V.  Met.  El  Ry.  Co 


PAGE 
183 

409 
154 
358 
648 
214 
502 
528 
491 
3(30 
336 


381 
450 
213 
622 
666 
273 
337 
344 
514 
167 
542 
512 
112 
617 
167 
128 
550 
272 
209 
28 
211 
179 
227 
203 
520 
230 
634 
497 
70 
65 
56 
186 
411 
316 
272 
370 
454 
210 
428,  429 


Bohn  V.  Bogue  503 

Bolding  V  Strugnell                      "  613 

Boldt  V.  N.  Y.  C.  R.  R.  Co.  331 

Boles,  In  re  99 

Boiling  I).  Turner  309 

Bolten  V.  Miller  319 

Bolton  V.  Bolton  281 

V.  Schriever  602 

Bonaparte  v.  Bonaparte  182 

Bond,  Er  parte  2'-'S 

Bones  v.  Booth  34 

Bonnard  v.  Ferryman  83 
Boogher  v.  The  Life  Assoc,  of  America  S69 
Bool  V.  Mix                                       208,  290 

Booth  V.  Baptist  Church  588 


PAGE 

Booth  V.  Kennard 

518 

Borden  v.  Fitch 

184         1 

V.  Jenks 

620 

Bortholick,  Matter  of 

602 

Borthwick  v.  Evening  Post 

498 

Bosen,  Ex  parte 

96 

Bosher  u.  R.  &  H.  Land  Co. 

394 

Bosley  v.  National  Machine  Co. 

394 

Boston  &  Prov.  R.  R.  Co.  v.  N. 

Y. 

&  N.  E.  R.  R.  Co. 

358 

Bostwick,  Matter  of 

237 

Bosvile  V.  Atty.-Gen'l 

173,  261 

Bothamley  v.  Sherson 

609 

Bouch  V.  Sproule 

619 

Boucicault  v.  Fox 

4m 

V.  Hart 

489 

Boughton  V.  Flint 

625 

Boulnois  v-  Peake 

647 

Bovill  V.  Pimm 

618 

Bowden,  In  re 

656 

Bowen  v.  Bowen 

348 

V.  Hall 

845 

f.  Lease 

39 

V.  Sullivan 

475 

Bovver  v.  Peate 

338,  339 

Bowers  v.  Smith 

603 

Bowery  Nat.  Bank  v.  Sniffen 

221 

Bowles  V.  Bingham 

261 

Bowling  Green  v  Carson 

435 

Bowman  v.  Chicago,  &c.  Ry.  Co. 

433 

V.  Taylor 

528 

Box  V.  Box 

193 

V.  Jackson 

193 

Boyce  v.  The  People 

250 

Boyd  V.  Boyd 

641 

V.  Brown 

525 

V.  Croydon  Ry.  Co. 

350 

V.  Higginson 

629 

V.  M'Alpin 

531 

V  Watt 

228 

Boyle  V.  Zacharie 

577 

Boys  V.  Boys 

617 

Boyse,  Re 

665 

Bradford  Nav.  Co.,  In  re 

402 

Bradford  v.  Young 

605 

Bradish  v.  Gibbs 

216,  224 

Bradley  v.  Bradley 

218 

V.  Healey 

677 

Bradly  v.  Heath 

658 

Bradshaw  i-.  Beard 

202 

V.  Huish 

62S 

V.  Lancashire  Ry.  Co. 

251 

Bradstreet  Co.  v.  Gill 

88 

Bragg  V.  City  of  Stockton 

639 

Braham  v.  Beachim 

646 

Bram  v.  Bram 

197            ' 

Bramwell  v.  Halcomb 

503 

Branch  v  Walker 

150 

Brandon  v.  Robinson 

222 

Brandon's  Trusts,  In  re 

306 

Brantley  v.  Wolf 

294 

Brashford  v.  Buckingham 

193 

Bray  v.  Chandler 

327 

Brazil  &  C.  Coal  Co.  v  Cain 

332 

Breed  v.  Pratt 

808 

Breiman  v.  Paasch 

225 

TABLE    OF   CASES. 


XXlll 


PAGE 

Breniner,  Ex  parte  173 

Brewis,  In  the  Goods  of  588 

Brewster  i'.  Hatch  392 

Brick  V.  Campbell  212 

'QviCiges,  Ex  parte  103 

Bridges  v.  Hawkesworth  475 

Briggs  V.  Briggs  181,  348 

V.  Carroll  628 

V.  United  States  470 

Bright  V.  Hutton  407 

V.  Larcher  621 

Brill  V.  Wright  628 

Brinckerhoff  v.  Bostwick  391,  397 

Brinkerlioff  v.  Aloe  515 

Brinkley  v.  Atty.-Gen'l  158 

V.  Brinkley  15,  161,  164 

Brinsmead  v.  Harrison  561 
British  Cast  Plate  Mf  rs  v.  Meredith  343 
British  Museum,  Trustees  of  v.  White  633 

Broadbent  v.  Barrow  609,  610 

Broadstreet  v.  Broadstreet  162 

Bronsdon  v.  Winter  609 

Bronson  v.  Bruce  93 

V.  Kinzie  578 

Brook  V.  Brook  146 

Brooke,  In  re  628 

Brooke  v.  Kent  594 

I'.  Logan  243 

Brooker  v.  Scott  288 
Brooklyn  El.  Ry.  Co.,  Application  of  400 
Brooklyn  Steam  Transit  Co.  v.  City 

of  Brooklyn  400 
Brooklyn,  W.  &  N.  Ry.  Co.,  Matter  of  400 

Brooks  V.  Bicknell  531 

V.  Byam  527 

;;.  Jenkins  520 

V.  Miller  539 

V.  State  473 

Brophy  ;;.  Bellamy  236 

Brow  V.  Brightman  239 

Brown,  Ex  parte  108,  618 

Brown  v.  Ackroyd  202 

V.  Carpenter  452 

1-.  Chicago,  R.  I.  &  P.  R.  R.  Co.     253 

V.  Clark  33,  591 

V.  Davis  533 

IV  Knapp  680,  656 

V.  Lvnch  255 

V.  Mallett  441 

V.  Maxwell  331 

V.  McGee  150 

V.  United  States  101 


V.  Webber 

37 

V.  Welsh's  Ex'r 

267 

V.  Whittemore 

319 

Brown  Chemical  Co.  v 

Meyer      545 

547 

Brown's  Appeal 

2.34 

Browne,  Re 

279 

Browne  v.  M'Guire 

621 

Bruen  v.  Gillet 

663 

Brugli,  Matter  of 

307 

Brummer  ;-.  Colin 

212 

Brunswick,  Duke  of,  v 

King  of  Han- 

over 

3 

379 

Brunt  V.  Brunt 

593 

Bryant  v.  Pottinger 

294 

Bryant  v.  Rich 

PAGE 

336 

V.  Tidgewell 

228 

Bryce  v.  Dorr 

531 

Brydon  v.  Stewart 

329 

Buccleuch    v.   Metropolitan 

Bd.  of 

Works 

428 

Bucher  v.  Cheshire  R.  R.  Co. 

25 

Buckingham  v.  Drury 

298 

Buckland  v.  Johnson 

561 

Buckmaster  i'.  Buckmaster 

188 

V.  McElroy 

228 

Budd  V.  New  York 

435 

Buel  V.  Trustees  of  Lockport 

37 

Buffalo  &  N.   Y.   City  R.  R. 

Co.  V. 

Dudley 

406,  407 

Buffett  V.  Troy  &  Boston  R.  R.  Co.      358 

Bulkley  v.  Van  Wyck 

299 

V.  Whitcomb 

391 

Bull,  Re 

101 

Bull  V.  FoUett 

322 

Buller  V.  Lidell 

184 

Bullinger  v.  Mackey 

497 

Bullock  V.  Wheatley 

661 

Bunce  v.  Bunce 

265 

V.  Vander  Grift 

196 

Bunn  V.  Carvalho 

7 

Burch  V.  Newbury 

29 

Burden  v.  Burdell 

189 

Burden  v.  Skinner 

320 

Burdett  v.  Abbot 

81 

V.  Allen 

477 

Burdick  v.  Garrick 

664 

Burgess  i'.  Burgess 

648 

V.  Seligman 

25 

Burghart  v.  Angerstein 

288 

Burke,  Matter  of 

236 

Buries  v.  Popplewell 

665 

Burley  v.  Russell 

286 

Burnaby  v.  Baillie 

173,  201 

Burnard  v.  Haggis 

302 

Burnie  v.  Getting 

660 

Burnley  Equit.  Co-op.  &  Ind.  Soc.  v. 

Casson  316 

Buron  v.  Denman  124 

Burr  V.  Burr                               168,  172,  189 

V.  Cowperthwait  521 

V.  De  La  Vergne  526 

V.  Wilcox  406 

Burress  r.  Commonwealth  66 

Burrill  r.  Boardman  631 

Burroughs  v.  Burroughs  225 

Burrow,  &c.  Lith.  Co.  v.  Sarony  500 

Burrus,  In  re  100 

Burt  V.  Evory  513,  515 

Burt  and  Towne,  Tn  re  bll 

Burtenshaw  v.  Gilbert  592.  594 

Burtis  V.  Burtis  15,  KH 

Burton  v.  Newhery  599 

V.  Sturgeon  178 

Burwell  v.  Mandeville's  Executor         659 

Bury  V.  Bedford  547 

Busell  Trimmer  Co.  v.  Stevens  615 

Bush  V.  Fox  518 

V.  Prosser  92 

V.  Steinman  387 

Bushnell  v.  Belolt  29 


XXIV 


TABLE    OF    CASES. 


Buslinell  i-.  Carpenter 
Buster  v.  Newkirk 
Butler  V.  Butler 

('.  Freeman 

V.  Paliner 

!•.  Slam 

V.  Steckel 

Buxton  V.  Buxton 
lUizzell  V.  Andrews 
Byam  v.  Byam 

V.  Collins 

V.  Eddy 

Byers  i-.  Commonwealth 
Bynner  v.  The  Queen 
Byrne  v.  Van  Hoeseu 


PAGE 

613 
480 
170 
274 

28 
347 
514 
661 
533 
223 

88 
531 

60 
536 
271 


Cadell  V.  Palmer  465,  466,  615,  631 

Caden  v.  Farwell  321 

Cadn)an  i'.  Cadman  236 

Cady  V.  Cady  *3-8 

Cahill  V.  Hilton  334 

Cahoon  v.  Ring  5'J8 

Caird  v.  Sime  4U2 

Cal';utta  Jute  Mills  Co.  v.  Nicholson     381 
Calder  v.  Bull  54 

Caldwell  v.  Van  Vlissengen    505,  506,  640 
Calhoun  v.  Delhi  R.  R.  40 

California,  State  of  v.  Rogers  29 

California  Electrical  Works  v.  Finck    526 
Callaghan,  In  re  281 

Callaghan  v.  Myers  497,  500 

Callan  v.  Wilson  50,  60 

Callo  V.  Brouncker  327 

Calvin's  Case  120, 121 

Cambrian  Peat,  Fuel,  &  Charcoal  Co., 


Re 

401 

Cambridge  v.  Rous 

615 

Cameron  v.  Baker 

264 

Campbell  v.  Campbell 

156 

V.  Crampton 

145 

— —  V.  Graham 

610,  622 

r.  Lucy 

600 

V,  Mackay 

244 

V.  M'Conaghey 

630 

V.  Race 

431 

)•.  Spnttiswoode 

89 

r    Stakes 

302 

Canada  Southern  R.  K.  Co.  v.  Gebhard  581 

Cancernie  v.  People 

46 

Candler  v.  Tillett 

663 

Candor's  Appeal 

348 

Caney  v.  Bond 

661 

Cannon,  In  re 

109 

Cannon  v.  Cannon 

261 

Canovar  v.  Cooper 

247 

Cantelou  v.  Doe 

150 

Canter  v.  People 

66 

Capella,  The 

479 

Cape  May,  etc.  Nav.  Co., 

In  re              363 

Capper's  Case 

300 

Carey  v.  Berkshire  R.  R. 

Co.                250 

Car-ile  v.  Wood 

156 

Cargill  V.  Bower 

396 

V.  Cargill 

188 

Carley  v.  Graves 

457 

Carlisle  v.  United  States  138 

Carlson  v.  Phcenix  Bridge  Co.  329 

Carlton  v.  Bokee  520 

Carmichael  v.  Carmichael  644 

Carnahan  v.  Schwab  564 

Carow  V.  Mowatt  297 

Carpenter  t;.  Schermerhorn  210 

V.  Smith  511 

V.  Whitman  263 

Carr  v.  Griffith  619 

Carrier  v.  Brannan  436 

Carroll  v.  Lessee  of  Carroll  23 

Carsan  v.  Watts  320 

Carson  v.  Murray  217 

Carte  v.  Duff  490 

V.  Evans  490 

V.  Ford  490 

Carter  r.  Beck  with  308 

V.  Howe  Machine  Co.  369 

V.  Montgomery  149 

Carthage,  Village  of,  v.  Frederick  74,  366 

Cartlidge  v.  Cartlidge  175 

Ca.-trell  v.  Wallick  538 

Cartridge  Co.  v.  Cartridge  Co.  523 

Cartwright  v.  Cartwright  217 

I'.  McGown  152 

Cary  v.  Bertie  274 

V.  Faden  491 

V.  Longman  491,  497 

V.  Wolff  515 

Case  of  Monopolies  505 

Case  of  Swans  449 

Case  V.  Marks  93 

Casey  v.  Cincinnati  Typ.  Union  82 

Cassidy  v.  Maine  Cent.  R.  R.  Co.  332 

Cassin  v.  Delany  205 

Casson  v.  Dade  590 

Castanos  v.  Ritter  250 

Castle  V.  Fogerty  227 

V.  Lewis  358 

Castleden  v.  Castleden  148 

Castrique  v.  Imrie  579 

Castro  V.  De  Uriarte  114 
Caswell  V.  Hazard  545,  550 
Cathcart  v.  Fire  Dept.  of  New  York       29 

Catlin  V.  Haddox  292 

CaujoUe  )'.  Ferrie  155 

Cavin  v.  Gleason,  Matter  of  457 

Cawley's  Estate  597 

C.  B.  &  Q.  R.  R.  Co.  V.  Iowa  399 
Celluloid  Mfg.  Co.  v.  Am.  Zylonite  Co.  515 


Co. 


515 
515 
430 
564 
333 


Chrolithion  C.  &  C 

V.  Conistock,  &c.  Co. 

Central  Bridge  Corp.  v.  Lowell 
Central  Nat.  Bank  v.  Seligman 
Central  R  R.  Co.  v.  De  Bray 
Central  Transp.  Co.  v.  Pullman's  Car 

Co. 
Cent.  Ry.  Co.  of  Venezuela  v.  Kisch 
Cesena  Sulphur  Co.  v.  Nicholson 
Chaddock  v.  Day 
Chalker,  In  re 
Chamberlain  v.  Chamberlain   34, 156, 161, 
173,  238,  374,  375,  633,  643 

V.  Napier  223 

Chamberlin  v.  McCallister  328 


359 
392 
381 
366 
209 


I 


TABLE  OF  CASES. 


XXV 


PAOE 

Chambers  v.  Smith  527 

Champion,  The  479 

Chancey's  Case  623 

Chandler  v.  De  Graff  486 

V.  Edson  484 

V.  Simmons  294 

Chapin  v.  Shafer  292,  2y5 

Chaplin  v.  Chaplin  1524 

Chapman  i-.  Ferry  500,  505 

V.  Phoenix  Nat.  Bank  471 

Chappie  V.  Cooper  289 

Charkieh,  The  3,  5,  379 

Cliarles  v.  Taylor  331 

Charlock  v.  Freel  337 

Charlotte  &c.  R.  R.  Co.  v.  Gibbes  74 

Charlton  v.  Earl  of  Durham  647 

Chase  v.  Sanborn  497 

Chatham  Furnace  Co.  v.  Moffatt  393 

Cheavin  v.  Walker  546 

Cheese  v.  Lovejoy  593 

Cheever  v.  Wilson  181,  184 

Chemical  Nat.  Bank  v.  Kohner  565 

Chenango  County  Mut.  Ins.  Co.,  Mat- 
ter of  364 
Cheney  v.  Arnold  152 
Cherry  v.  Colonial  Bank  of  Austral- 
asia 392 
Cheshire  v.  Barrett  292 
Chester,  City  of  19,  480 
Chetwynd  v.  Chetwynd  175,  178 
Chewacla  Lime  Works  v.  Disraukes  359 
Chicago  City  v.  Bobbins  327 
Chicago   Mil.  &  St.  P.  R.  R.  Co.  v. 

Ross  333 

Chicago   Music   Co.  v.  J.   W.  Butler 

Co.  505 

Chicago  Packing,  &c.  Co.  v.  Chicago  435 
Chicago  &  T.  R.  R.  Co.  v.  Simmons  332 
Chichester,  Lord,  v.  Coventry  623,  624 
Child  V.  Child  273 

V.  Homer  93 

Chilton  V.  London  &  C.  Ry.  Co.  3G6 

China,  The  339 

Chipman  v.  Montgomery  666 

Chirac  v.  Chirac  126 

Cliisholm  V.  Georgia  380 

Christmas  v.  Russell  184 

Chubb  V.  Stretch  199 

Church  of  the  Messiah,  Matter  of  376 
Churchill  v.  Lewis  225 

Churchward  v.  Chambers  327 

Churton  v.  Douglas  542 

City  Hank  of  Columbus  v.  Bruce  409 

City  of  Bowling  Green  v.  Carson  435 

City  of  Breuham  v.  Brenham  Water 

Co.  366 

City  of  Chester,  The  19,  480 

City  of  Chicago  v.  Cameron  397 

V.  RumpfE  366 

City  of  Glasgow  Bank  Cases  395,  402 
City  of  Little  Rock  v.  Barton  435 

City  of  Marshalltowu  v.  Blum  436 

City  of  Portland  v.  Richardson  327 

City  of  St.  Louis  v.  Bircher  4.35 

Civil  Rights  Cases  75,130 

Civil  Service  Supply  Assoc,  v.  Dean    547 


Claflin  V.  Continental  Works 

486 

Claridge  v.  Evelyn 

297 

Clark,  Matter  of 

127 

Clark  V.  Adie 

528 

V.  Adie  (No.  2) 

518 

V.  Bever 

405 

V.  Browne 

622 

V.  Clark 

235 

,  283 

V.  Fisher 

601 

V.  Fitch 

247 

,248 

V.  Fosdick 

172 

,217 

V.  Freeman 

82 

V.  Fry 

337 

V.  Miller 

29 

V.  Mitchell 

74 

V.  Montgomery 

277 

V.  Tarbell 

580 

V.  Van  Court 

294 

Clarke,  Ex  parte 

66 

Clarke,  Re 

246 

Clarke  v.  Burke 

202 

V.  City  of  Rochester 

41 

1-.  Clarke 

144 

V.  Cobley 

287 

289 

V.  Dickson 

392 

V.  Earl  of  Ormonde 

655 

V.  Holmes 

329 

V.  Sawyer 

601 

V.  Van  Surlay 

279 

Clarkson  v.  Clarkson               593 

594 

618 

Clayton  v.  Liverman 

597 

V.  Stone                            497 

498, 

499 

Clearman  v.  Clearman 

187 

Clement  v.  Maddick 

503 

V.  Riley 

160 

Clements,  Ex  parte 

65 

Cleopatra,  The 

479 

Clerk  V.  Ward 

590 

Clifford  V.  Burton 

281 

V.  Old  Colony  R.  R.  Co. 

332 

Clifton  V.  Burt 

652 

Clinch  V.  Financial  Corp. 

404 

Clinton  v.  Clinton 

172 

I'.  Rowland 

246 

Clough  V.  Bond 

196 

Glowers  v.  W.  St.  L.  &  P.  R.  R. 

Co. 

333 

Coard  v.  Holderness 

610 

Cobbett  V.  Woodward 

497 

.503 

Cochran  v.  Van  Surlay 

41 

279 

Cochrane,  In  re 

229 

Cochrane  v.  Badische,  etc.  Fabrik 

522 

Cockerell  v.  Barber 

6-54 

Cockran  r   State 

322 

Cocks  V.  Haviland 

662 

Coddington  v.  Coddington 

183 

Codrington  v.  Codrington 

175 

Coffeen  v.  Brunton 

497 

Coffin  V.  Bassett 

320 

V.  Tracy 

37 

Cogley  11.  Cushman 

294 

("!ohn  V.  Cohn 

186 

Colah,  Matter  of 

311 

Cole,  In  the  Goods  of 

588 

Cole  V.  Cassidy 

393 

V.  Cole 

171 

V.  Mann 

424 

XXVI 


TABLE    OF    CASES. 


405 
407 
127 

59 
213 
167 
340 

83 
622,  642 

58 
549 
282 
596 
134 


Cole  V.  Millerton  Iron  Co 

V  Hyan 

Coleman,"  Matter  of 
Coletiian,  Be 
Coleman  v.  Burr 

V.  Coleman 

r.  Riches 

CoUard  v.  Marshall 
Colleton  V.  Garth 
Collier,  Ex  parte 
Collier  v.  Chadwick 

. V.  Munn 

V.  Kutledge 

Collinuwood  v.  Pace 

Collins  V.  Collins      116,  152,  157,  160,  166 

f.  Lean  59 

Collinson  v.  Lister  oo» 

Collison  u.  Curling  622 

Colonial  Bldg.  Assoc,  v.  Atty.-Gen  1 

of  Quebec  43 

Colonial   Life   Ass.  Co.  v.  Home   & 

Colonial  Ass.  Co.  544,  545 

Colt  V.  Colt  2119 

Columbia  Mill  Co.  v.  Alcorn  546 

Colville  V.  Middleton  610 

Com.  V.  Baird  319,  320 

V.  Bearse  433 

r.  Beck  320 

I'.  Bowden  65 

V.  Cook  65 

V.  Deacon  320,  321 

V.  Desilver  494 

('.  Detwiller  363 

V.  Edwards  320,  321 

r.  Hamilton  66,  320 

V.  Harrison  320 

r.  Hawes  112 

V.  Huntley  433 

V.  King  "^21 

V.  Kinsley  434,  435,  436 

V.  McCormiek  66 

V.  Munson 

V.  Omohundro's  Adra 

V.  Perry 

V.  Strieker 

V.  Sutherland 

r.  Titus 

V.  Wilbank 

V.  Wyatt 

Comer  v.  Cunningham 
Compton  V.  Bearcroft 

V.  Bloxhara 

Comstock,  In  re 

Concklin  v.  Havens 

Condy  v.  Mitchell 

Conger  i\  Van  Aernum 

Congress,  &c.,  Spring  Co.  v.  High 

Rock,  &('.  Spring  Co.  546 

Conley  v.  Portland  332 

Conner  v.  Elliott  128 

Connolly  v.  Connolly  664 

r.  Farrell  620 

Connor,  In  re  98 

Conrad  v.  Ithaca  338 

Lane  286 


154 

156 

74 

261 

67 

473 

319 

70 

424 

158 

616 

382,  570 

482 

5-50 

347 


Conservators  of  the  River  Tone  v.  Ash  355 


Consolidated,  &c.  Co.  v.  "Wolf 
Constantine  v.  Van  Winkle  39, 

Constantinople  &  Alexandria  Hotel 

Co.,  In  re 
Continental  Store,  &c.  Co.  v.  Clark 
Converse  v.  Converse 
Conway,  Matter  of 
Conway  v.  Lynch 

V.  Reed 

Coode,  In  the  Goods  of 

Cook,  Li  re  106,  107, 

Cook  V.  Bradley 

V.  Cook  183, 

V.  Gregson 

V.  Hart 

V.  Pearce 

V.  Starkweather 

V.  TuUis 

V.  Winchester 

Cooke  V.  Cooke 

I'.  Newell 

Cooke's  Trusts,  /«  re 

Coon  V.  Syracuse  &  Utica  R.  R.  Co. 

Coope  V.  Cresswell 

Cooper  V.  Blissert 

t'.  Bockett 

V.  Cooper  188,  285, 

V.  Crane 

V.  Lloyd 

V.  Martin 

V.  Shepherd 

V.  Simmons 

I'.  Telfair 

Coote  V.  Whittington 

Cope,  In  re 

Cope  V.  Evans 

Corbett  v.  Poelnitz 

Corbitt  V.  Corbitt 

Corliss  V.  E.  W.  Walker  Co. 

Corn  Exch.  Ins.  Co.  i-.  Babcock 

Cornell  v.  Hay 

Cornell  University  i\  Fiske 

Cornwall  v.  Hawkins 

Corpe  V.  Overton 

Corrance  v.  Corrance 

Corsair,  The 

Corson  v.  State 

Cory  v.  Burr 

V.  Carter 

Cossette  v.  Dun 

Costello's  Case 

Costerton  v.  Costerton 

Costigan  v.  Mohawk  &  H.  R.  R.  Co. 

Cotheal  i'.  Cotheal 

Cottman  v.  Grace 

Cotton  r.  Gillard 

Coucbman  v.  Sillar 

Couldery  v.  Bartrum 

County  of  Allegheny  v.  Cleveland 

Couron  v.  Couron 

Courtright  v.  Courtright 

Cousen  v.  Cousen 

Covell  V.  Covell 

V.  Heyman 

Cowell  V.  Gatcombe 

Cowen  V.  Hulton 


PAGE 

530 
208 

300 
534 
584 
587 
64 
302 
600 
,  109 
256 
188 
648 
103 
517 
547 
457 
590 
175 
202 
230 
331 
631 
665 
593 
347 
144 
204 
234 
561 
316 
53 
644 
646 
551 
211 
460 
493 
221 
393 
633 
292 
295 
177 
253 
436 
21 
75 


300 
665 
328 
596 
635 
547 
317 
565 
381 
630 
239 
185 
173 
103 
663 
644 


TABLE  OF  CASES. 


XXVll 


189, 


Cowles  V.  Cromwell 

Cowper  V.  Mantell 

Cox  V.  Cox 

Coxhead  v.  Mullis 

Coyle  V.  McNabb 

Crabb  v.  Crabb 

Craft  V.  United  States 

Cragie  v.  Hadley 

Craig  V.  Board  of  Med.  Examiners 

V.  Leslie 

V.  Van  Bebber  290, 

Craigs,  Tlie 

Cranch  v.  White 

Crandali  i-.  Piano  Mfg.  Co. 

Crane  v.  Price  508, 

Cranmer,  Ex  parte 

Crapo  V.  Kelly  254, 

Crapster  v.  Griffltli 

Crawford  v.  Crawford 

V.  The  Wm.  Penn 

Crawshay  v.  Thompson 

Creevy  v.  Breedlove 

Cregin  i'.  Brooklyn  Crosstown  Ry. 

Co. 
Crewe  v.  Crewe 
Crickett  v.  Dolby 
Crispin  v.  Babbitt 
Crofts  V.  Waterhouse 
CroU  ».  Edge 
Crombie  v.  McGrath 
Cronin  v.  People 
Crook  V.  Hill 
Cropsey  v.  Ogden 

V.  Sweeny 

Crosby  v.  Hanover 
Cross  V.  Carstens 

V.  Cross 

V.  Sprigg 

V.  United  States  Trust  Co. 

Crossdail  v.  Phillips 
Crossley  v.  Dixon 
Crowell  v.  Jackson 
Crowninshield  v.  Crowninshield 
Cruce  V.  Cruce 
Cruikshank  v.  Gordon 

V.  Home  for  the  Friendless 

Crum  V.  Bliss 

Crumb,  Ex  parte 

Crutcher  v.  Kentucky 

Cubley  v.  Cubley 

Cubreth,  Ex  parte 

Cuckson  V.  Stones 

Cullen  V.  Thomson's  Trustees       346, 

Cumber  v.  Wane 

Cumines  v.  Supervisors  of  Jefferson 

Cuming  v.  B.  C.  R.  R.  Co. 

V.  Hill 

Cummings  v.  Gaun 

V.  Perham 

V.  Tlie  State  of  Missouri 

Cummins  v.  Des  Moines  &  St.  Louis 

Ry.  Co. 
Cumner  v.  Milton 
Cunliffe  v.  Cunliffe 
Cunningham  v.  Burdell 
V.  Massena  Springs  Co. 


654. 


366, 
263, 


17^ 


PAGE 

407 

622 
502 
296 
477 
188 
138 
457 
129 
133 
294 
480 
346 
529 
513 
306 
581 
4G0 
163 
138 
650 
441 

251 
169 
6-56 

ooo 
(J'J'J 

341 
517 

315 
433 
264 
178 
348 
430 
564 
183 
626 
643 
651 
528 
393 
584 
664 

92 
631 
238 
276 
4.36 
175 
109 
825 
392 
566 

38 
2.50 
315 
475 
452 

53 

428 
2.55 
610 
157 
359 


Cunningham  v.  Pell 

PAGE 

412 

Cunningiiams  v.  Cunninghams 

155 

Curran  v.  Burdsall 

529 

V.  Craig 

529 

V.  Merchants'  Mfg.  Co. 

331 

V.  State  of  Arkansas 

412 

Curtin  v.  Patten 

292 

Curtis,  Ex  parte 

102 

Curtis  V.  Curtis 

168, 

175 

186 

v.  Hubbard 

25 

V.  Kile}'^ 

339 

V.  Leavitt 

36, 

367 

384 

Curtis's  Case 

300 

Cussons  V.  Skinner 

327 

Cuthbert  v.  Purrier 

655 

Dabbs  V.  State 

434 

DaCosta.  Matter  of 

97 

Dain  v.  Wycoff 

249 

322 

Daland  v.  Williams 

618 

Dallow,  In  the  Goods  of 

598 

Dalrymple  v.  Dalrymple 

153, 

154 

158 

Dalton  V.  Angus 

339 

V.  Gib 

288 

Daly  V.  D.  W.  &  W.  Ry.  Co 

251 

V.  Palmer 

497 

V.  Webster 

497 

Dalzell  V.  Dueber  Mfg.  Co. 

508, 

526 

527 

Dammert  v.  Osborn 

643 

Danforth  v.  Woods 

221 

Dangars  v.  Rivaz 

388 

Dann,  Matter  of 

58 

Danville  v.  Amoskeag  Mfg. 

Co. 

295 

Darby  v.  Ousely 

81 

Darcy  v.  Allin 

505 

Dare  v.  Boylston 

530 

Darling  v.  Berry 

572 

Darlington  v.  United  States 

429 

Darrigan  v.  N.  Y.  &  N.  E.  R 

R.  Co. 

333 

Dartmouth  College  v.  Woodward 

69, 

352, 

354 

399 

Dash  V.  Van  Kleeck 

36 

Davey  v.  Ward 

2.36 

Davidson,  Ex  parte 

500 

Davidson  v.  State 

435 

V.  Tulloch 

392 

Da  Vila  v.  Davila 

642 

Davis,  In  re 

576 

Davis  r.  Beason 

56 

V.  Coburn 

321 

V.  Davis 

38, 

154 

245 

V.  Fredericks 

509 

515 

V.  Gemmell 

397 

V.  Goodenow 

348 

V.  Jackson 

618 

V.  Krum 

487 

— —  V.  Packard 

37 

V.  Railroad  Co. 

677 

V.  Stan  dish 

227 

Davison  v.  Rake 

656 

Dawes  v.  Howard 

235 

Dawson  v.  Clark 

638 

V.  Dawson 

256 

V.  Helmes 

290 

?;.  Jay 

244 

280 

xxvm 


TABLE    OF   CASES. 


Mat- 


Day  V.  Everett 

V.  Putnam  Ins.  Co. 

Dean  v.  Peel 

Dean,  &c.  of  Femes,  Case  oi 

Deanesville  Cemetery  Assoc 

ter  of 
Dearden  v.  Townsend 
Deare  o.  Souttcn 
Debenliam  v.  Mellon 
De  Brimont  v.  Penniman 
Debuly  v-  Eckett 
De  Francesco  c  Barnum 
Degg  V-  Midland  R.  K.  Co. 
Degnan  v.  Degnan 
De  Haber  v.  Queen  of  Portugal 
De  Haber  and  Queen  of  Portugal, 

flatter  of 
De  Haven  v.  Williams 
De  Kuyper  v.  Witteman 
Delafie'ld  v.  Parish 

V.  State  of  Illinois 

De  Lancey  v.  McKeen 

Delaney  v.  Van  Aulen 

De  Llamosas  v.  De  Llamosas 

De  Manneville  v.  De  Manneville 

Demarest  v.  Wynkoop 

Demelt,  In  re 

Demilt  v.  Leonard 

Dempsay  v.  Lawson 

Dempsey  v.  Tylee 

Den  V.  Johnson 

Denison  v.  Denison 

Dennis  i\  Clark 

Dennison  v.  Page 

Dent  V.  Dent 

Denton,  Matter  of 

Denyssen  v.  Mostert 

De  Peyster  v.  Michael 

Derisley  v.  Custance 

De  Roo  V.  Foster 

Derry  v.  Peek 


PAGE 

319 
347 
249 
361 


426 

366 

201,  202 

2GU 

234 

617 

288,  344 

335,  349 

155 


379 
662 
552 
584 
377 
53 
610 
166 
242 
220 
309 
309 
594 
210 
584 
154 
285,  2.50 
261 
168,  172 
614 
597 
440 
299 
287 
393,  394 
De  Ruyter  i'.  The  Trustees  of  St. 

Peter's  Church  376 

Desdoity,  Ex  parte  364 

Desmare  i'.  United  States  138 

Detroit  v.  Corey  338 

Devanbagh  r.  Devanbagh  147 

De  Vese  v.  Pontet  <325 

Devlin's  Case  ^^ 

De  Wahl  r.  Braune  210 

Dewev  v.  Toledo,  etc.  Ry.  Co.  359 

De  Witt  V.  Elmira,  &c.  Mfg.  Co.  534 

V.  Hastings  355 

Dexter  )'.  Spear  87 

Dick  r.  Struthers  539 

Dickenson  v.  Dickenson  161 

Dickerson  v.  Brovpn  154 

Dickeson  v.  Hilliard  88 

Dickinson  v.  Codwise  221 

V.  Dickinson  188 

V.  North  Eastern  Ry.  Co.  263 

r.  Stidolph  588 

Dicks  V.  Yates  498,  502,  546 

Dierker  v.  Hess  247 

Diez,  Matter  of  586,  591,  597 

Dill  I'.  Bowen  294 


Dillingham  v.  Smith 
Dillon  V.  Mount  Cashel 
Dimock  v.  Revere  Copper  Co. 
Di  Savini  v.  Lousada 
Ditcham  v.  Worrall 
Diversby  v.  Johnson 
Dixon  V.  Fawcus 
Samson 


PAGE 

487 
273 
575 
280 
296 
487 
551 
625 


L.  &  W.  R.  R.  Co.  V.  East  Orange  435 


D. 

Dobbins  v.  State 
Dobree  v.  Napier 
Dobson  V.  Dornau 

V.  Hartford  Carpet  Co. 

Dodd  I'.  Focht 
Dodge  V.  Woolsey 
Doe  V.  Barford 

V.  Doe 

V.  Fleming 

V.  Harris 

V.  Hiscocks 

V.  Hubbard 

V.  Lancashire 

V.  Manifold 

V.  Needs 

V.  Palmer 

t'.  Perkes 

V.  Roe 

Doglioni  v.  Crispin 
Doker  v.  Hasler 
Dole  V.  Olmstead 
Doles  r.  The  State 
Dollard  v.  Roberts 
Dolphin  V.  Robins 
Dominick  v.  Michael 
Donaldson  v.  Beckett 
Donn,  In  re 
Donnell  v.  Mississippi 
Donnelley  v.  Ivers 
Donnelly  v.  Corbett 

. V.  Decker 

V.  Donnelly 

Donovan  v.  Needhara 

Doran  v.  Simpson 

Dorland  v.  Patterson 

Dorman  v.  State 

Dormer's  Case 

Dorrity  v.  Rapp 

Dorr's  Estate,  Re 

Dorsey,   &c.   Rake   Co 
Mfg.  Co. 

Doty  V.  Postal 

Dougan's  Case 

Doughty  V.  Penobscot  Log  Co. 

Douglas  V.  Cruger 

V.  Douglas 

Dow  V.  Beidleraan 

V.  Eyster 

Dowd  V.  Hurley 

Dowley  v.  Winfield 

Downs  V.  Allen 

Doyle,  Matter  of 

Doyle  V.  Blake 

V.  Continental  Ins.  Co. 

V.  Spaulding 

Drake  v.  Drake 

V.  Mitchell 


V.   Bradley 


65 
346 
520 
540 
249 
411 
595 
189 
156 
592 
607 
607 
595 
590 
606 
593 
592 
225 
587,  643 
231 
486 
66 
250 
230 
38 
37 
454 
130 
500 
578 
433 
172 
655 
665 
81 
433 
271 
338 
259 


527 
227 
403 
332 
223 

38,  279 
76 
202 
150 
655 
150 
263 
663 

353,  383 
509 
604 
561 


TABLE    OF   CASES. 


XXIX 


PAOE 

Drehman  v.  Stifle  53 

Drew  V.  Drew  188 

V.  Peckwell  320 

Dreyfus  v.  Sclineider  532 

Drinkwater  i'.  Falconer  620 

DriscoU  V.  West  Bradley  &  C.  M.  Co.   409 
Drummond  v.  Venable  513 

Drury  v.  Ewing  497 

Dryden  v.  Swinburne  127,  128 

Dube  V.  Lewiston  833 

Duberley  v.  Day  193 

Du  Boulay  v.  Du  Boulay  545 

Duchess  of  Hamilton  v.  Incledon         658 
Dudley  v.  Collier  382 

V.  Mayhew  37,  534 

V.  Parker 

Duffies  V  Duffies 
Duffy  V.  Reynolds 

r   The  People 

Dufour  V.  Pereira 

Duignan  v.  Croome 

Duins  V.  Donovan 

Duke  V.  Markhani 

Duke  of  Buccleuch  v.  Metropolitan 

Bd.  of  Works 
Duke  of  Norfolk's  Case 
Duncan  v.  Cannan 

V.  Dixon 

V.  Duncan 

V.  Findlater 

V.  Watts 

Duncomb  v.  Tickridge 

Dunn,  In  re 

Dunston  v.  Imp.  Gas  Co. 

Dunwick,  Bailiffs,  &c.  of,  v.  Sterry 


Dupre',  Ex'r  of,  v.  Boulard 

Durant  v.  Durant 

Durfee  v.  Jones 

Durgin  v.  Ireland 

Durham,  Earl  of,  v.  Wharton 

Durrant  c.  Friend 

Duryea  v.  Bliven 

Dutton  V.  Marsh 

Dwindle  v.  N.  Y.  Cent.,  &c.  Ry.  Co. 

Dyer,  Matter  of 

Dyer  v.  Brannock 

V.  Ervingr 


Dyke  v.  Walford 
Dynen  v.  Leach 


228 
225 
539 
60 
597 
649 
159 
364 

428 
467 
223 
293 
152 
343 
617 
289 
576 
865 
477, 
478 
149 
186 
475 
566 
624 
621 
217 
392 
336 
275 
154 
593 


445,  558 
330 


Eachus  V.  Broomall  523 

Eadie  v.  Slimmon  212 
Eagleton  Mfg.  Co.  v.  West,  Bradley, 

&c.  Co.  513 

Eames,  Ex  parte  568 

Earl  of  Durham  v.  Wharton  624 

Earl  of  Glengal  v.  Barnard  626 

Earl  of  Ilchester,  Ex  parte  594 
Earl  of  Lindsey  v.  Gt.  Northern  Ry. 

Co.  404 

Earl  of  Milltown  v.  Trench  655 

Earle  v.  Sawyer  620 

Earp  V.  Faulkner  453 

Earp's  Appeal  618 


PAGE 

Easley  v.  Craddock  320 

East  V.  East  661 

East  India  Co.  v  Skinner  558 

East  Tenn.,  &c.  Ry.  Co.  v.  De  Armond  332 
East  Tenn.  &  W.  N.  C.  R.  R.  Co.  v. 

Collins 
Eastern  Counties  Ry.  Co.  v.  Broom 


Eaton  V.  D  L.  &  W.  R  R.  Co. 

V.  Hill 

V.  Munroe 

V.  The  B   C.  &  M.  R.  R  Co 

V.  Western 

P^baugh  V.  German  Ref.  Ch. 
Ebbetts,  Ex  parte 
E.  B.  W.  &  M.  Co.,  Matter  of 
Eckstein  v.  Frank 
Eddels  V.  Johnson 
Edelsten  i-.  Edelsten 
Edge,  In  the  Goods  of 
Edgerly  v   Shaw 
Edgington  v  Fitzmaurice 
Edwards  v.  Davis 

V.  Edwards 

— —  ;;.  Elliott 

V.  Freeman 

V.  Midland  Ry.  Co. 

Egbert  v.  Lippraann 


333 
340, 
368 
342 
302 
484 
428 
317 
364 
292 
427 
287 
653 
651 
599 
293 
393 
256 
166 
50 
639 
340,  359 
511 


Ehret  v.  Pierce  498,  504 

Ehrman  v.  Teutonia  Ins.  Co.  379 

Eilenbecker  t-  Plymouth  County  432 

Eisenlord  v.  Clum  156 

Ela  V.  Brand  267 

Elderton,  Jn  re  243 

V.  Em  mens  328 

Eleanor,  The  479 
Electoral  Coll.  of  South  Carolina  101 
Electric  Gas  Lighting  Co.  v.  Boston 

Electric  Co.  523 

Eliott  V.  Sparrell  664 

Elizabetli  v.  Pavement  Co  5-39 

Elk  V.  Wilkins  312 

Elkins  V  Camden  359 

Elkinton  v.  Brick  689 

Ellen  V.  Topp  317 

Ellicott  V.  Peterson  289 

EUiot  i:  Davenport  626 

Elliott,  In  re  634 

Elliott  V.  Collier  195 

V.  Hayden  661 

V.  Lambert  244 

V.  Lewis  244 

('.  Smith  634 

('.  Turner  616 

o.  Wohlfrom  184 

Ellis  i;.  Ellis  168 

V.  Sheffield  Gas  Co.  337 

Elmore  v.  Fitzpatrick  482 
Elmslie  v.  M'Aulay  665 
Elmwood,  Township  of  v.  Marcy  23 
Elwell  V.  Martin  302 
Elwood  V.  Klock  209 
Ely  V.  Holton  40 
Emack  v.  Kane  82 
Emerson  v  Davies  497 
V.  Hogg  520 


XXX 


TABLE    OF   CASES. 


Day  and 


PAGE 

271,272 
644 
596 
203 
62 
81 
204 


Emerson  v-  Spicer 
Emery  v.  Berry 

V.  Darling 

. •  V.  Emery 

Emery's  Case 
Emmens  v.  Pottle 
Emmet  v.  Norton 
Emperor    of    Austria 

Kossuth  , 

Emoire  Assurance  Corp.,  i"  re 
Employers' Ass.  Corp..  Employers 

Ins.  Co. 
Emulous,  The 
English  V.  Newell 

. V.  State 

Enohin  v.  Wylie 

Ensign,  Estate  of 

Enterprise  Mfg.  Co.  v.  Sargent 

Enticknap  v.  Rice 

Era  Assurance  Society,  In  re 

Erkenbrach  v.  Erkenbrach   161,  It 6,  l^b, 

Eschweiler  v.  Stowell 

Esron  v-  Nicholas 

Estcourt  V.  Estcourt  Hop  Essence 

Co 
Este  V.  Smyth 
Evans  v.  Carrington 

. V.  Coventry 

V.  Eaton 

0.  Foster 

. V.  Smith 

I).  Walton 

Evelyn,  Ex  parte 

Evergreens,  Matter  of  the 

Evers  v.  Challis 

Everson  v.  Carpenter 

Ewens  v.  Ewens 

Ewer  V.  Coxe 

Ewing  I'.  Orr  Ewing 

Excelsior    Needle    Co. 
Needle  Co 

Eynon,  In  the  Goi.ds  of 

Eyre  v.  Shaftsbury 

Eyster  v.  Gaff 


377 
403 

544 

137 
662 
58 
600,  667 
177 
515 
160 
403 


397 
287 


545 

223 

178,  217,  218 

397 

508 

71 

597 

344 

646 

40 

615 

293,  295 

148 

601 

600,  668 

Union 

512 

590 

272,  274,  281 

575 


PAGE 

326 
218 
3 
242 
249 
565 
332 
229 
479 
146 
302 
130 
338 
451 
145 
647 
361 
92 
155,  265 
328 


Fawcett  v.  Cash 
Fearon  v.  Aylesford 
Feather  v.  The  Queen 
Feeney,  Matter  of 
Felkner  v.  Scarlet 
Fellows  V.  Stevens 
Feltham  v.  England 
Fendall  v.  Goldsmid 
Fenix,  The 
Fenton  v.  Livingstone 
Ferguson  v.  Bobo 

V.  Gies 

II.  Hubbell 

V.  Miller 

Ferlat  v.  Gojon  ^ 

Fernandes'  Executors'  Case 
Femes,  Case  of  Dean,  &c.  of 
Fero  V.  Ruscoe 
Ferrie'  v.  Public  Adm. 
Fewings  v.  Tisdal 
Ficklen  v.  Shelby  Co.  Taxing  Dist. 
Field,  Ex  parte 

V.  De  Comeari 

V.  Field 

V.  Peckett  o2 

V.  Schieffelin 

Filow's  Case 
Finch  V.  Finch 

V.  Marcon 

Findlay  v.  Bear 

Fingal  v.  Blake 

Fire  Dept  of  N.  Y.  v.  Chapman 

Fire  Ins.  Patrol  v.  Boyd 

Firebrace  v.  Firebrace 

Firemen's  Ins.  Co.  v.  Bay 

First  Nat'l  Bank  v.  Hummel 

First  Troop  Phila.  Cavalry  v  Morris   490 

Fischer  v.  Blank  5^7 

V.  Popham  o»^ 

Fish  V.  Ferris  ^^^ 

Fisher  v.  Clement  °^ 

V.  McGirr  433 

Fitton,  In  re  ^^^ 

Fitzgerald  v.  Chapman  1'° 

V.  Fitzgerald  188 

V.   Quann  205,  206 


129 
58 
533 
225 
,661 
277 
450 
239 
662 
451 
652 
434 
343 
230 
209 
457 


F.  V.  D. 

Fagan,  Re 
Fairer  v.  Park 
Fairfield,  The 
Fairman  v.  Ives 

V.  Oakford 

Talk  V.  Schumacher 
Falkland  Islands  Co.  v.  Queen 
Faremouth  v.  Watson 
Farmers'  Loan  &  Trust  Co.  v.  Clowes 
Farmers'  &  Traders'  Bank  of  Bona- 
parte V.  Haney 
Farnsworth  v.  Oliphant 

Farrand,  Matter  of 

Farrington  v.  Donohoe 

Farrior  v.  New  Eng.  Mort.  Co. 

Farrow  v.  Wilson 

Farwell  v.  B  &  W.  R.  R.  Co. 

V.  Nillson 


148 
58 
610 
479 
88 
326 
500 
450 
144 
384 

409 
282 
101 
264 
382 
325 
331 
564 


Fitzhugh  V.  Wilcox 
Fleet  V.  Perrins 
Fleshward  v.  Jackson 
Fletcher  i-.  Fletcher 

V.  Peck 

V.  Rhode  Island 

Flitcroft's  Case 

Florsheim  v.  SchiUing 

Floyd  V.  Calvert 

Flynn  v,  Salem 

Foakes  v.  Beer 

Fobes  V.  Shattuck 

Fogg  V.  Blair 

Foley  V.  Chicago,  R  I  &  P.  R.  R  Co 

V.  Mut.  Life  Ins  Co. 

Folsom  V.  Marsh 

Fond  du  Lac  County  v  May 

Fonda  v.  Van  Home 

Foot  V.  Card 

V.  Dickinson 


308 
195 
215 
190 
54 
4.33 
397,  410 
513 


154 
332 
565 
460 
405 
382 
271 

497,  504 
514 

254,  271 
225 
192 


TABLE    OF   CASES. 


XXXI 


FAQE 

Foote  V.  State  70 

Forbes  v.  King  8(3 

Forbes  &  Judd's  Case  401 

Ford  V.  Foster  546 

V.  Lake  Shore  &  Mich.  So.  Ry.     329 

V.  Munroe  250 

Fores  v.  Wilson  344 
Forrest  v.  Forrest                    166,  171,  172 

V.  Nelson  424 

Forster  v.  Forster  188 

Forsyth,  Matter  of  322 

Forsyth  v.  Forsyth  178 

V.  Hooper  323 

i:  Wells  484 

Forth  V.  Forth  187 

Fort  Smith  v.  Dodson  477 

Foster  v.  Lindsay  530 

V.  Neilson  111 

V.  Stewart  317 

Fowler,  In  re  115 

Fowler,  Matter  of  426 

Fowler  i'.  Butterby  212 

V.  Fowler  185 

V.  Hollenbeck  319 

V.  IngersoU  614 

V.  Willoughby  610 

Fox  V.  State  of  Oliio  50 
Fraker  v.  St.  Paul,  M.  &  M.  R.  R. 

Co.  332 

Francis  v.  Cockrell  339 

Franciska,  The  472 

Frank  v.  Bingham  457 

V.  Mutual  Life  Ins.  Co.  212 

Franklin  v.  McCorkle  249 

Frasher  v.  State  149 

Frazer  v.  Gates,  &c.  Iron  Works  520 

Frazier  v.  Penn.  R  R.  Co.  334 

Frearson  v.  Loe  519 

Frederick  v.  Atty.-Gen'I  265 

Freeman  v.  Fairlie  662 

V.  Robinson  235 

V.  Simpson  627 

Freer,  In  re  622 

French  v  Carter  514 

V.  Maguire  489,  490 

Fricke  v.  Hum  522 

Friermuth  v.  Friermuth  348 

Friesner  v   Symonds  262 

Frith,  In  the'Ooods  of  590 

Frost  V.  Capel  654 

V.  Denman  664 

Fruhauf  v  Bendheim  216 

Fry  V.  Fry  660 

V.  State  435 

Fryer  v.  Morris  622 

Fuchs  V.  Koerner  328 

Fuller  V.  Bemis  497 


53 


Fuller  &  .Johnson  Mfg.  Co.  v.  Bartlett  527 
Fullerton  ;-•.  Jackson  .  274 

Fulton  Bank  v.  N.  Y.  &  Sharon  Canal 
^  Co.  368 

Furman  v.  Van  Sise  239,  247 

Fursaker  v.  Robinson  264 

Fussell  V.  Dowding  178 

Fust,  Matter  of  307 

Fynn,  In  re  243 


G.  V.  G. 

G.  &  H.  Mfg.  Co.  V.  Hall 

Gabrielson  v.  Waydell 

Gaffney  v.  Colvill 

Gahn  v.  Nieracewicz 

Gale  V.  Village  of  Kalamazoo 

Gall  V.  Gall 

Gallagher  v.  Piper 

V.  Vought 

Gallemore  v.  Gill 

Galliano  v.  Lane 

Gallwey  v.  Marshall 

Galusiia  v.  Galusha  172 

Galveston  v.  Barbona 

Galveston,  &c.  Ry.  Co.  v.  Smith 

Gandy  v.  Maine  Belting  Co. 

Ganse,  Matter  of 

Gantert,  Matter  of 

Gardner  v.  Atty.-Gen'I 

V.  Collins 

V.  Gardner 

V.  Hatton 

Garland,  Ex  parte 

Garlick  v.  Strong 

Garnett,  In  re  245 

Garnier,  Tn  re 

Garrett,  In  re 

Garrison  v.  City  of  New  York 

Garth  v.  Meyrick 

Garvey's  Case 

Gassett  v.  Patten 

Gatehouse  v.  Gatehouse 

Gaters  v.  Madeley 

Gates  V.  Meredith 

Gauntlet,  The 

Gay  V.  Ballou 

Gear  v.  Grosvenor 

Geaves  v  Price 

Gee  y.  Liddell 

i'  Prilchard 

Gelpcke  v  City  of  Dubuque 

Gelston  v.  Hoyt 

General  Exch   Bank  v.  Homer 

Genet  v.  Tallmadge  254 

George  v.  Gobey 

George  and  Richard,  The 

Georges  v  Chancie 

Gera  v.  Ciantar 

Gerdes  v.  Weiser 

Germain  v.  Lake  Shore  &  Mich.  So. 

Ry.  Co. 
Gerry,  Matter  of 
Gertrude,  The 
Gervis  v.  Gervis 
Gibbs  V.  Harding 

V.  Hoefner 

V  Queen  Ins.  Co. 

Gibson  v.  Bott 

V.  Soper 

V.  Williams 

V.  Woodworth 

Giddings  v  Seward 

Gifford  V.  Thompson 

Gilbert  r.  Knox 

Gilbert  Elevated  Ry.  Co.  v.  Kobbe, 

Matter  of  42 


PAGE 

147 
546 
333 
412 
221 
366 
154 
332 
348 
627 
208 
86 
217 
253 
333 
510 
311 
654 
158 
23 
174 
622 
;,  659 
216 
',  246 
310 
576 
559 
612 
55 
202 
188 
194 
93 
471 
289 
528 
594 
625 
490 
24 
662 
.391 
277 
227 
300 
215 
258 
348 

408 
619 
479 
653 
217 
529 
378 
657 
294 
85 
534 
610 
618 
590 


m 


xxxu 


TABLE  OF  CASES. 


PAGE 

606,  609 
340,  368 
593 
247 
618 
520 
451 
208 
235,  239 
656 


Nail 


Giles  V.  Melsom 

(.,  Taff  Vale  Rj-  Co. 

,•.  Warren 

Gilkesun  r.  Gilkeson 
Gilkey  ''.  Taine 
Gill  c.  Wells 
Gillet  I'.  Mason 

-  V.  Stanley 

Gilley  v.  Gilley 
Gillman  v.  Gillman 
Gihnan  i-.  Gilman 

i>.  Lockwood 

V.  JNIcArdle 

Gilmer  f.  United  States 

Gilmore  v.  City  of  Utica 

Gilpin  V.  Gilpin 

Gilroy  v.  Stephens 

Gilson  I'.  Spear 

Gipps  V.  Gipps 

Giraud  v-  Hanbury 

Girls'  Industrial  Home  v.  Fntchey 

Gladney  v.  xMurphy 

Gladstone  v-  Gladstone 

Glasier  r   Rolls 

Glass  V.  Wynn 

Glavin  v.  Rliode  Island  Hospital 

Glen  Cove  Mfg.  Co.  v.  Ludeling 

Globe    Nail    Co.  v.   Superior 

Gloucester  Ins.  Co.  v.  Younger 
Glover,  Ex  parie 
Goate  V.  Fryer 
Godcharles  v.  W^geman 
Goddard  v.  Grand  Trunk  Ry. 

I'.  O'Brien 

Godillot  V.  Harris 
Goebel  v.  Wolf 
Goffy.  Brainerd 

V.  Great  Northern  Ry.  Co. 

V-  Kilts 

Goldsworthy,  Re 
Gonsolis  V.  Gearliart 
Goodman  v.  Pocock 
Goodsell  r.  Myers 
(Jood win's  Trusts,  In  re 
Goodyear  v.  Bisliop 

V.  Hartford  Spring  Axle  Co. 

Gordon  v.  Hostetter 

V.  Potter 

Gorham  v  Fillmore 

V.  Gross 

. V.  Ives 

Gorham  Co.  v.  White 

Goshen  r.  Kern 

Gosling  V  Roberts 

Gottfried  r  Miller 

Gotts  r   Clark 

Gouband  v.  Wallace 

Gould  V.  Hudson  Riv.  R.  R.  Co. 

V.  Little  Rock,  M.  R.  &  T.  Ry 

Co. 
Goulder  v.  Goulder 
Gourand,  Will  of 
Grace  v.  Newman 
Graff  V.  Bonnett 
V.  Kinney 


PAGE 

381 
540 
665 
636 
493 
525 


644 

578 


469 

36 

169 

662 

286 

169 

638 

239 

249 

178 

394 

185 

343 

554 


Graham  v.  Boston,  &c-  Rj';Co. 

V.  Geneva,  &c.  Mfg.  Co. 

V.  Maxwell 

Gram  v.  The  Prussia,  &c.  Ev.  hoc 
Granard,  Earl  of,  v.  Dunkin 
Grant  v.  Raymond 
Gravelle  v.  Minneapolis  &  St.  Louis 

R.  R.  Co. 
Graves'  Case 
Graves  v.  Graves 
Gray  v-  Cookson 
Durland 
Portland  Bank 
„.  Russell 
Grayburn  v.  Clarkson 
Greaves  v.  Gouge 
Green  v.  Burke 

::SSr     _   291,294 

V.  Hudson  Riv.  R.  R.  Co.  250 

V.  Roberts  ^*» 

V.  Rutherforth  387,  3«S 

V.  State  61,  149 


332 
500 
188 
816 
239 
408 
497 
661 
397 
297 
493 


521 
24 

273 

665 
73 

336 

566 

547 

613 

487 

340 

451 

241 

327 
328 
293 
300 
527 
513 
9 
235 
216 
339 
85 
532 
;5 
522 
529 
235 
499 
428 

405 
181 
602 
491,  497 
223 
214 


82 
599 
580 
497 
433 
23 
648 
584 
210 
484 
628 
593 
259 
604 
161,  164,  166,  204 
58 


V.  Telfair 
V.  Tribe 
V.  Van  Buskirk 
Greene  v-  Biship 
V.  James 
V.  Lessee  of  Neal 
Greenside  i'.  Benson 
Greenwood  v.  Greenwood 
Gregory  v.  Pierce 

V.  Stryker 
Greville  v.  Browne 

V.  Tylee 

Grey's  Trusts,  In  re 
Greyston  i'.  Clark 
Griffin  v.  Griffin 
J.  Wilcox 
Griffith  V.  Railroad 

■J.  Wells 

Griffiths  V  Dudley 

V.  Gidlow 

V.  Lewis 

V.  London,  &c.  Docks  Co. 
V.  Wolfram 
Griggs  V-  State 
Grimes,  In  re 
Grinnell  v.  Wells 
Griswold  v.  Butler 

V.  Waddington 

Grocers'  Bank  v.  Murphy- 
Grove,  In  re 
Grover  v.  Wakeman 
Guardians  of  the  Poor  v.  Nathans 
Guckenheimer  v.  Angevine 
Guenther  i'.  Birkicht 
Guernsey  i'-  Wood 
Guilderland  i'.  Knox 
Gunter  v.  Graniteville  Mfg.  Co. 
Gurly  V.  Gurly 
Gut  V.  State 
Guthrie  v.  Weaver 
Guy  V.  Sharp 
Guy  Mannering,  The 


454 
37 
335 
330 
85 
330 
346 
473 
246 
250 
308 
138 
447 
259 
563 
154 
484 
348 
578 
321 
332 
642 
54 
454 
612 
339 


TABLE  OF  CASES. 


xxxin 


PAGE 

217 
The  Western  Union  Tel. 

337 
108 
536 
150 
5G6 
411 
379 
381 

58 
508 
263 
230 

55 

81 
241 

56 

430,  551 » 

542,  545,  549 


H.  V  W. 
Hackett  v. 

Co. 
Hackney  v.  Welsh 
Haddan's  Patent,  In  re 
Haden  v.  Ivey 
Hagaman  v.  Burr 
Hagan  v.  Walker 
Hagerman  v.  Empire  Slate  Co. 
Hagood  V.  Southern 
Haile  v.  Tlie  State 
Hailes  v.  Van  Woomer 
Hains  v.  Jeffell 
Plair  V.  Hair 
ilaire  v.  State  of  Nebraska 

V.  Wilson 

Hakewill,  In  re 
Hale  V.  Everett 

V-  Lawrence 

Hall  V.  Barrows 

V.  De  Cuir  24 

V.  Gardner  319,  321 

V.  Germain  227 

V.  Hall  169,  186 

V.  Hollander  250 

V.  Jones  293 

V.  Smith  343 

Halliiiger  v.  Davis  46,  76 

Halliwell  v.  Counsell  318 

Halloran  v.  The  State  66 

Halstead  v.  Mayor,  &c.  of  N.  Y.  384 

Hamaker  v.  Blanchard  475 

Hambly  v   Trott  651 

Hamilton,  Matter  of  154 

Hamilton  v.  Davis  477 

V.  Eno  86 

c.  Kingsbury  527 

V   Lomax  296 

V.  Rollins  528 

Hamilton,  Duchess  of,  v  Incledon        658 
Hammersmith  Skating  Co.  v.  Dublin 

Co.  82 

Hammond  v.  Hastings  409 

Hampden's  Case  274 

Hanbury  v.  Hanbury  163 

V.  Spooner  616 

Hancock  v   Peaty  143 

V.  Yaden  74 

Handley  v  Handley  174 

Hands  v.  Slaney  288 

Handy  v.  Brown  321 

V.  Handy  167 

Hanks,  Matter  of  307 

Hannahs  v.  Hannahs  664 

Hannon  v.  Agnew  343 

Hanselt  v.  Vilraar  563 

Hapgood  V.  Hewitt  508 

Harbeck  v.  Harbeck  155 

Hard  v.  Ashley  666 

Hardware  Co.  v.  Implement  Co.  564 

Hare  v.  Mclntire  346 

Harlow  v.  Putnam  528 

Harman  v.  United  States  57 

Harmer  v.  Cornelius  327 

V.  Killing  292 

Harmon  v.  Struthers  511 


Harmood  v.  Oglander 
Harrington  v.  Harrington 
Harris,  In  the  Goods  of 
Harris  v.  Baker 

V.  Currier 

V.  Davis 

V.  Fly 

V.  Morris 

V.  Woman's  Hospital 

Harris'  Settled  Estates 

Harrisburg,  The 

Harrison  v.  Anderston,  &c.  Co. 

V.  Asher 

V.  Bush 

V.  Grady 

V.  Harrison 

V.  Mexican  Ry.  Co. 

Hart  V.  Deamer 

V.  N.  Y.  Dry  Dock  Co 

V.  Prater 

V.  Ten  Eyck 

V.  United  States 

V.  Wall 

Hartraan's  Appeal 
Hartung  v.  The  People 
Harvard  Unitarian  Soc.  u  Tufts 
Harvey  v.  Briggs 

V.  Farnie 

Harwood  v.  Baker 
Hassell  v.  Hawkins 
Hatch  V.  Adams 

V.  Coddington 

V.  Hall 

V.  Moffitt 

Hatfield  v.  Sneden 
Hatt  V.  Nay 
Hauser  i'.  Sain 
Hawenstein  v.  Lynham 
Hawkes  v.  Barrett 
Hawkins  v.  Hawkins 
Hawkins'  Trusts,  Re 
Hawksworth  v.  Hawksworth 
Hawley,  Matter  of 
Hawley  v.  Bradford 

V.  James 

Hay  V.  Cohoes  Co. 
Haycraft  v.  United  States 
Hayes  v  Ball 

V.  Hayes 

V.  Missouri 

V.  Oshkosh 

V.  People 

Haynes  v.  Mico 

V.  Nowlin 

Hays  V.  Sulsor 

Haywood  v.  Foster 

Hazeltine  v.  Miss.  Val.  Fire  Ins.  Co. 

Head  v  Head 

Head-Money  Cases 

Hearle  v.  Greenbank 

Heath  v.  Chapman 

V.  Mahoney 

V.  Perry 

V.  West 

Hebblethwaite  v.  Hepworth 
Hebe,  The 


PAOE 

652 
663 
593 
843 

348 

43 
629 
203 
843 
209 
253 
515 
621 

88 
203 
170 
410 
309 
332 
288 
457,  487 
138 

81 
347 
41,54 
609 
294 
180,  181 
584 
625 
526 
561 
526 
522 
197 
334 
348 
128 
666 
170 
616 
245 
281 
221 
466 
338 
470 
84,  85 
609 

74 
367 
154 
625 
225 
509 

93 
379 
173 
111 
207 
634 
287 
656 
294 
152 
480 


11 


xxxiv 


TABLE    OF    CASES. 


291. 
557 
629 


Hedges  v.  Aid  worth 
Ilecrnians  c.  Robertson 
llefel  V.  Whitely  Land  Co. 
llegan  i;.  VAghth  Ave.  R.  K-  <-o. 
Heine  v.  Ai)i)leton 
Heinz  i'.  Lutz 

Helbert  v.  Banner        ,  ^    ,  ,. 
Heller  v.  Mayor,  &c.  of  Sedalia 
Helps  V.  Clayton 
Hemming  v.  Gurrey 
Henderson  v.  Broomhead 

V.  Maxwell 

V.  N.  Y.  Cent.  R.  R.  Co. 

Hendricks  v.  Montagu 
Hennequin  v.  Clews 
Henning  v.  Planters  Ins.  Co. 
Henrick  &  Maria,  The 
Henry,  Ex  parte 
Henry  v.  Brady 

V.  Gt.  Northern  Ry.  Co 

V.  Root 

Hensloe's  Case 
Hensman  v.  Fryer 
Henty  v.  Henty 
Honwood  V.  Harrison 
Hereford  v.  Police  Jury 
Herendeen  i'.  De  Witt 

Hermann  Loog  v  Bean 

Heme  v  Meyrick 

Heme  Bay  Waterworks  Co.,  In  re 

Herrington  y.Village  of  Lansingburgh 

Hershey  v.  Clark 

Hertford  v  Lowtber 

Hervey  v.  R.  I.  Locomotive  Works 

Hesdra,  Matter  of 

Heseltine  v  Heseltine 

Hewett  I'   Norton 

Hewitt,  Will  of 

Hewitt  V-  Prime 

V.  Warren 

Heyward  v.  Mayor  of  New  York 

Hibernia  Nat.  Bank  v  Lacombe 

Hicks  V.  Gregory 

Hier  v.  Abrahams 

Higgins  V.  Keuffel 

V.  The  Mo.  Pac.  Ry.  Co. 

Higgins's  Trusts,  Re 


Higgs  n  Goodwin 
Hiles  V.  Fisher 
Hill  V.  Arbon 

V   Berry 

r.  Chapman 

V.  Curtis 

!'.  Day 

IV  Evans 

V.  Gomme 

i;  Harding 

V.  Hibbet 

. V.  Hill  245, 

V.  Nelms 

V.  Walker 

Hiller  v  Burlington,  &c.  Ry.  Co. 

Hilliard  v.  Hambridge 

HiUman  v.  Stephens 

Hills  V.  Liverpool  United  Gas-Light 
Co 


PAGE 

626 

652 

500 

34 

494 

551 

402 

367 

288 

612 

89 

500 

428 

543 

572 

379 

471 

508 

332 

410 

295 

638 

653 

188 

89 

441 

256 

83 

652 

402 

338 

597 

621 

580 

654 

622 

576 

587 

248 

287 

405 

580 

2ti4 

546 

497 

329 

651 

533 

197 


590 


Hills  V.  London  Gas-Light  Co 

Hinckley  v.  Emerson 

Hindley  v.  Westmeath 

Hindmarsh  v.  Charlton 

Hinds  V.  Harbon 

Hinely  v.  Margaritz 

Hines  v.  Howes 

Hinks  V.  Safety  Lighting  Co. 

Hinson  v.  Williamson 

Ho  Ah  Kow  V.  Nunan 

Hoar  V.  Hoar 

Hoard  v.  Peck 

Hobbie  t'.  Jennisoa 

V.  Smith  ^  515 

Hobbit  V.  London  &  N.  W.  Ry.  Co. 

Hoblvn  V.  The  King 

Hobson  V.  Blackburn 

Hodge  V.  The  Queen 

Hodgens  v   Hodgens 

Hodgson  V.  Scarlett 

Hoey  V.  Dublin  &  B.  J.  Ry.  Co. 

Hoffheins  v.  Russell 

Hoffman  v.  State 

Hogg  V.  Emerson 

Holdsworth  v.  Davenport 

Hole  v.  Bradbury 

Holland  v.  Alcock 

V.  Clark 

Holliday  v.  Rheem 

Hollingsworth  v  Duane 

HoUis  V.  Drew  Theol.  Seminary 

375, 

Hollister  v.  Benedict,  &c.  Mfg.  Co 

Holmes  v.  Blogg 


227 
654 
644 

308 
518 
244 
597 
155 
246 
290 
648 
379 
193 
234 

533 


V.  Clark 

V.  Gilman 

V.  Jennison 

V.  Jones 

V.  Mather 

V.  N.  E.  R.  R.  Co. 

V.  Onion 

V.  WiUard 

I)  Worthingtoa 

Holt,  In  re 

Holt  V   Bancroft 

V.  Scholefield 

Holt,  Sir  Thomas,  v.  Astgrigg 

Holyoke  v   Haskins 

Home  Nat  Bank  v.  Sanchez 

Homer  v.  Thwing 

Honduras,  Republic  of,  v.  Soto 

Hood  V.  Haden 

V.  Hood 

Hook  V.  Donaldson 
Hooke  V.  Hooke 
Hookham  v.  Pottage 
Hooks  V.  Perkins 
Hope,  Matter  of 
Hope  V.  Brewer 

V.  Carnegie 

V.  Hope 

Hopkins  v  Carpenter,  In  re 
Hopkins'  Trusts,  In  re 
Hopkinson  v.  Burghley 
Hopper  V.  Hopper 
Hopt  V.  Utah 


547,  549, 


197,  225, 


PAGE 
616 

452 
217 
591 
346 
292 
321 
519 
663 
70 
169 
226 
526 
1,534 
337 
365 
597 
43 
237 
89 
334 
522 
65 
520 
635 
502 
635 
651 
508 
82 
238, 
632 
514 
295 
330 
457 
103 
92 
341 
349 
337 
391 
330 
243 
564 
84 
84 
310 
564 
302 
3 
609 
177 
291 
160 
551 
320 
108 
643 
665 
243 
570 
619 
490 
189 
54 


211, 


384, 


TABLE  OF  CASES. 


XXXV 


Horn  Silver  Mining  Co.  v.  New  York 

State 

129 

Home  V.  Ciiatham 

526 

Horner  v.  The  Collector 

32 

Horton  v.  Cantwell 

604 

V.  Mabon 

513 

Horwood  u.  Heffer 

203 

Hospes  V.  Northwestern  Car  Mfg.  Co. 

405 

Hotchkiss  V.  Oliphant 

93 

Hotten  u.  Arthur                               491 

,  503 

Houhiing  v.  Cross 

622 

Hoiililsworth    u.    City   of    Glasgow 

Bank 

395 

Houliston  V.  Smyth 

203 

House,  Matter  of 

183 

Househill  Coal,  &c.  Co.  v.  Neilson 

510 

Houstoun,  Matter  of 

310 

Howard  v.  Daly 

328 

V  Digby 

219 

V  Gunn 

490 

Howarth,  hi  re 

236 

Howden,  In  the  Goods  of 

588 

Howe  V.  Earl  of  Dartmouth 

617 

Howe  Machine  Co  v.  Cage 

436 

Howell  V  City  of  Buffalo 

426 

V.  Howell 

93 

Howry  v.  Calloway 

322 

Hoxie  V.  Lincoln 

295 

Hoye  V.  Swan 

429 

Hoyt  u.  Hilton 

274 

V.  Hoyt 

629 

V.  Mackenzie 

491 

Hubbard  v.  Weare 

893 

Huber  v.  Reily 

70 

Hudnut  V   Bullock 

821 

Hudson  V.  Hudson 

186 

V.  Ocean  Steamship  Co. 

336 

Hudson  V.  Osborne 

549 

Hudson  Real  Estate  Co.  v.  Tower 

406 

Huffman  v   Rout 

321 

Hughes  V.  Empson 

661 

V.  Humphreys 

317 

V.  Jones 

309 

V.  Percival 

339 

Hume  V.  Burton 

305 

Humphrey  v.  Douglass 

302 

Humphreys  v.  Humphreys 

621 

V.  Mears 

343 

Hung  Hang,  Ex  parte 

99 

Hunt,  Ex  parte 

256 

Hunt,  Matter  of 

589 

Hunt,  Re 

246 

Hunt  V.  Bates 

561 

V.  Bennett 

81 

V.  Cary 

391 

V.  De  Blaquiere                       202 

,204 

V.  Goodlake 

81 

V.  Hoover 

585 

V.  Hunt                                     182 

,217 

I'.  Johnson 

210 

r.  Peake 

206 

Huntley  v.  Luscombe 

96 

Hurlbut  V.  Carter 

384 

Hurst  V.  Beach 

612 

Hurtado  v.  California 

73 

Huss,  Matter  of 

643 

FAOE 

Hussey  v.  Coger  333 

V.  Ryan  250 

Hutcheson  v.  Peck  225 

Hnich'ins,  Ex  parte  495 

Hutchins  v.  Kimmell  154 

Hutchinson  >•.  Fuller  610 

v.  The  York,  &c.  Ry.  Co.              331 

Huth  V.  Carondelet  Marine  Ry.  Co.  290 
Hutton  V.  Scarborough  Hotel  Co.         410 

Hyatt  V.  Allen  410 

V.  Ingalls  528,  529,  535 

Hyde  i'.  Cookson  485 

V.  Hyde  159 

Hylton  V.  Brown  53 
Hynes,  Matter  of  277 
V.  McDermott  154,  155 


Idalio,  The 
Ilil  V.  R.  R.  Co. 
Ihley  V.  Padgett 
Ilchester,  Earl  of,  Ex  parte 
Illingworth  v.  Burley 

V.  Spaulding 

Illinois,  State  of,  v  Delafield 

Illinois  L.  &  L.  Co.  v.  Bonner 

Ilott  V.  Genge 

Imhoff  V.  Witmer 

Imperial  Anglo-German  Bank,  Re 

Imperial  Hyd.  Hot.  Co.  v.  Hampson 

Imperial  Mercantile  Assoc,  In  re 

Incorp.  Church,  &c.  Soc  v.  Coles 

Ind.  B.  &  W.  R.  R.  Co.  v.  Dailey 

Ind.  Dist.  of  Boyer  v.  King 

Ingalls  V.  Tice 

Inglesant  v.  Inglesant 

Inglis  V.  Trustees  of  Sailors'  Snug 


Harbor 
Inman  v  Foster 
Innes  v.  Mitchell 
Insurance  Co.  v.  Brame 

V.  Davis 

V.  Francis 

V.  Morse 

V.  "  The  C.  D.  Jr." 

Ireland  v.  McGarvish 
Irons  V.  Field 
Irvine  v.  Irvine 
Irwin  v.  Dearman 
Isaacs  V  Daly 

V.  Third  Ave.  R.  R.  Co. 

Isaacsohn  v.  Isaacsohn 

Isham  V.  Buckingham 

Isle  Royale  Mining  Co.  v.  Hertin 

Ives  V  Canby 

Ivins  IV  Norcross 

Ivory,  In  re 


121, 

87 


138, 


487 
253 
291 
594 
200 
527 
377 
261 
589 
308 
402 
397 
402 
635 
334 
457 
530 
589 

631 
.  92 
622 
253 
139 
377 
353 
377 
85 
85 
290 
844 
498 
336 
160 
407 
484 
610 
319 
647 


Jack  V.  Martin 
Jackson,  Ex  parte 
Jackson  v.  Beach 

V.  Brookins 

V.  Cairns 

V.  Carpenter 

V.  Combs 


116 

118 
132 
227,  228 
208 
290 
271 


XX.Wl 


TABLE    OF   CASES. 


FAGS 

Jackson  v.  Edwards  208 

V.  Gilclirist  38,  39 

V.  Green  134 

.^—  V.  Hobliouse  222 

V.  Jackson  134,  589,  591 

V.  Lunn  132 

c.  Mayo  293 

V.  State  15t) 

V.  Stevens  208,  210 

V.  Turquand  392 

V.  Vanderlieyden  210 

r.  White  121 

IV  Wriglit  121 

Jacob's  Will,  In  re  654 
Jacobs,  Matter  of                      74,  437,  438 

Jacomb  v.  Harwood  647 

Jacques  v.  Chambers  655 
Jaehne  v.  People  of  New  York         42,  55 

Jagger  Iron  Co.  v.  Walker  566 

James,  In  the  Goods  of  598 

James  v-  James  548 

V.  LeKoy  321 

V.  Woodruff  412 

Janaway,  In  the  Goods  of  589 

Janes  v.  Cleghorn  267 

Jaques  v.  Metli.  Epis.  Church  220 
Jarrold  v.  Houlston                  499,  502,  503 

Jaynes  v.  Jaynes  225 

Jefferies  v.  Michell  625 

Jefferj's  v.  Boosey  502 

Jeffreys  v.  Vantiswarts  281 
Jencks  v.  Langdon  Mills        508,  527,  530 

Jenkins  v.  Harvey  354 

V  Jones  622 

V.  Steanka  487 

V.  The  State  67 

V.  Walker  520 

Jenner  v.  Ffinch  590 

V.  Morris  201 

V.  Walker  288 

Jennings  v.  Brown  264 

V  Gt.  Northern  Ry.  Co.  366 

Jennison  i'.  Citizens'  Savings  Bank      359 

('.  Hapgood  664 

Jewett  V.  Dringer  487 

Jewis  V-  Lawrence  616 

Jewsbury  v.  Newbold  201 

Jillard  r   Edgar  630 

Job  V.  Job  663 

John  Shillito  Co.  v.  McConnell  564 

Johnson  v.  Boyfield  289 

V.  Bradstreet  Co.  88 

I'.  Brady  627 

V.  Dicken  84 

V.  Dodd  322 

y.  Goss  609,611 

V.  Johnson  167,  168 

V.  Meeker  328 

V.  Moon  657 

V.  Newton  602 

V.  Prendergast  664 

V.  Silsbee  247 

V.  Thirteen  Bales,  &c.  137 

Johnston  v.  Orr  Ewing  552 

V.  Parker  I59 

V.  Pittsburgh  &  W.  R.  R.  Co.        332 


Johnston  v.  Sumner 

PAGE 

203 

Johnstone  v.  Beattie 

242,  255 

280,  281 

V.  Hamilton 

635 

Jollet  V.  Deponthien 

579 

JoUie  V.  Jaques 

497 

501 

Jolly  I'.  Bees 

200 

Jolly's  Adm'x  v.  City 

of  Hawesville 

367 

Jones  V.  Butler 

298 

V.  Foxall 

664 

V.  Green 

622 

V.  Habersham 

375 

V-  Jones 

150, 

184, 

185 

V.  Leonard 

107 

V.  People 

433 

V.  Reynolds 

526 

V.  State 

66 

V.  Terra  Haute  R.  R.  Co. 

410 

V.  Walker 

559 

V.  Williams 

635 

Jordan,  In  the  Goods 

3f 

600 

Jordan  v.  Ala.  Gt.  Southern  Ry. 

Co. 

369 

V.  O'Connor 

83 

y  Overseers  of  Dayton 

525 

V.  Wright 

235 

Joyce   V.   Chillicothe 

Foundry, 

&c. 

Works 

515 

Judkins  v.  Walker 

295 

Judkins'  Trusts,  In  re 

286 

Judson  V.  Cope 

509 

Jupp's  Case 

541 

Justices  V.  Murray 

51 

Kain  v.  Larkin 

247 

Kaine,  Ex  parte 

99 

Kaine,  In  re 

99 

Kaiser  v.  Flaccus 

334 

V.  Kaiser 

148 

Karap  V.  Kamp 

165 

,173 

Kane,  Matter  of 

236 

Kane  v.  Mulvany 

88 

V.  New  York  El. 

Ry.  Co. 

428 

V.  Northern  Cent 

.  R.  R.  Co 

335 

Kansas  v.  Zeibold 

432 

Karberg's  Case 

394 

Kaufman  i'.  Schoeffel 

214 

Kavanagh,  Matter  of 

375 

Kay  V.  Marshall 

519 

V.  de  Pienne 

210 

V.  Smith 

293 

Kearney  v.  Missionary  See. 

238 

Kearny,  Ex  parte 

100 

Keats  V.  Keats 

168 

Keecli  V.  Keech 

188 

Keene  v.  Kimball 

489 

V.  Wheatley 

488 

Kelley  v.  Davis 

235 

V.  Drury 

577 

Kellinger  v.  Roe 

276 

Kellum,  Matter  of 

591 

Kelly  V.  Byles 

498 

,  502 

I'.  Crapo 

254 

,581 

V.  Harrison 

121 

V.  Hutton 

503 

V.  Kelly 

185 

V.  Mayor,  &c.  of  N.  Y. 

337 

TABLE    OF    CASES. 


XXXVll 


Kelly  V.  Morris 

V.  Owen 

V.  Partington 

V.  Porter 

c.  Sprout 

V.  United  States 

Kemp,  Jn  re 
Kendall  v.  Stone 

v.  United  States 

V.  Winsor 

Kennard  v.  Louisiana 
Kennedy  v.  Abbott 

V.  Gifford 

V.  Saunders 

Kensham  Blue  Lias  Co.  v.  Baker 

Kent  V.  Pickering 

V.  Quicksilver  Mining  Co. 


PAQE 

492 

128 

86 

530 

320 

64 

58 

94 

68 

534 

74 

631 

84 

227 

382 

665 

359,  410 


105, 


107 
250 
561 
112 

lO'J 
563 


329 


Kentucky  v.  Dennison 
Kenyon  u.  The  People 

V.  Woodruff 

Ker  V.  Illinois 

V.  The  People 

Kerchies  v.  Schloss 

Kern  v.  DeCastro  &  D.  Sugar  Ref 

Co 

Kernochan,  Matter  of,  618,  664 

Kerr,  Jn  re  262 

('.  Dougherty  375 

V.  Kerr  176,  184 

Kettletas  v.  Gardner  275 

Keys  V.  Norris  308 
Keystone  Bridge  Co.  v.  Newberry        332 

Kidd  V.  Pearson  432 

Kies  V.  Erie  City  366 

Kilbee  v.  Sneyd  662 

Kilgore  v  Rich  289 

Kimmish  v.  Ball  129 

Kincheloe  v  Merriman  202 

King,  In  re  287 

King  V.  Berry  589 

V.  Cunningham  38 

I'.  Delavel  241 

V.  DeManneville  241 

V   Gallun  514 

V.  George  612 

V.  Greenhill  241 

V  Gwinear  319 

V   Harris  361 

b\  Hoare  561 

V.  Inhab  of  Woodlawn  38 

V  Johnson  240 

V.  Kline  452 

V.  Luffe  173,  260 

V.  Lyme  Regis  362 

V.  Mead  217 

V.  Metcalf  519 

V.  Smith  240 

V.  Soper  263 

V.  Sourton  174 

V  Spurr  342 

V.  Talbot  660 

V.  Ward  98 

V.  Watson  82 

V.  Westvvood  365 

V.  Wheeler  519 

V.  Winton  96 


PAGE 

King  of  Spain  v.  Hullett  377 

Kingsbury's  Case  107 

Kingwood  v.  Bethlehem  319 

Kinilock  v.  Secretary  470 

Kinnier  v.  Kinnier  181 

Kinney  v.  Commonwealth  149 

Kirby  v.  Kirby  166 

V.  Potter  611 

Kirk  V.  Atlantic,  &c.  R.  R.  Co.  332 

V  Nowill  365 

Kirkman  v.  Booth  659 

Kitchen,  lie  622 

Kitchen  v  Lee  294 

Kittle  V.  Merriara  520 

Klein  v.  Wolfsohn  144 

Knapp  V.  Morss  513 

V.  Roche  561 

KnatchbuU  v  Hallett  457 

Knee,  Ex  parte  262 

Knickerbocker  v.  De  Freest  299 

Knight  V.  Knight  621 

c.  Wilcox  249 

Knobloch  v.  C.  M.  &  St.  P.  R.  R.  Co.    434 

Knott  V.  Cottee  661 

Knotts  V.  Bailey  628 

Knowles  v.  McCamby  209 
Knowlton  v.  Cong.  &Emp.  Spring  Co.    22 

Knox  V.  Bushell  201 

V.  Hay  man  392 

Knye  v.  Moore  264 

Koehler  v  Sanders  544 

Kohl  V.  United  States  429 

Kohn  V.  Fandel  326 

Kohne's  Estate  285 

Kring  v.  Missouri  54 

Kunnen  v.  Zurline  597 

Kunzler  v.  Kohaus  568 
Kynnaird  v.  Leslie                           134,  637 


L.  V.  L.  147 

Labouchere  v.  Dawson  549 

Lacon  v.  Lacon  623 

Lady  Thynne  v.  Earl  of  Glengall       624, 

626 
La  Farge  v.  Exchange  Fire  Ins  Co.  350 
La  Fayette  Ins.  Co.  r.  French  352,  379 
Lahr  v  Met.  El.  Rv.  Co.  428 

Lake  Ontario  &  C.  R.  R.  Co.  v.  Mason  406 
Lake  Ontario  Shore  Ry.  Co.  v.  Curtiss  406 
Lake  Shore  Banking  Co.  v.  Fuller  564 
Lake  Shore  &  M.  S.   R.  R.  Co.   v. 

Stupak  334 

Lake  View  &  Rose  Hill  Cera.  Co.  432 
Lamar  V.  Browne  4.0 

V.  Micou  255,  279,  660,  061 

Lamb  v  Evans  497 

V.  Lamb  382 

Lamkin  v.  Knapp  1"7 

L'Amoureux  v.  Crosby  308 

Lancefield  v.  Iggulden  653 

Land  Credit  Co.,  &c.  v.  Fermoy  391,  396 
Lander  v.  Lander  170,  171 

Lane  v   The  People  473 

Lane  &  Bodley  Co   v.  Locke  508 

Langdale  v.  Esmonde  609 


XXXVllI 


TABLE    OF   CASES. 


Mar- 


Lanpdon  v.  Astor's  Ex'rs 
Lanfie,  Ex  parte 
Lai)t;tunl  v.  Gascoyne 
Lansdowne,    Marquis    of, 

cliioness  of  Lansdowne  ^ 

Lantz  V.  Frcy  ^ 

Lapsley  r.  Grierson  i 

Lariviore  i'.  Morgan  ^ 

Larking,  E.r  parte  ^ 

Larson  v.  Cliase  ] 

Latiirop  r.  Union  Pac.  Ry   Co.  - 

LauL'linian's  Appeal  ,      „  ,, 

Laugliton  c.  Bishop  of  Sodor  &  Man 
Laundy  v.  Williams  | 

Law,  In  tiie  Goods  of  ; 

Law  V.  Wilkin 
Lawrence  r.  Allen 

i".  Dana  49(,  i 

V.  Lawrence 

V.  Spence 

(•.  The  Mayor 

Lawton  v.  Steele  74,  ^ 

Lawyer  v.  Fritcher  ' 

Lead  Co.  v.  Richardson 
Leader  v.  Purday 
Learoyd  v.  Brook 
Leask  v.  Scott 

Leatiier  Cloth  Co.  v.  Am.  Leather 
Cloth  Co.  542,  543,  547, 

Leavenworth,  County  of,  v.  Barnes 

Lebanon  v  Griffin 

LeBreton  v   Miles 

Le  Caux  v.  Eden 

Lee  V.  Cohick 

V.  Gibbings 

V  Haley  547, 

V.  Lee 

Leeds  Estate,  &c.  Co.  v.  Shepherd 

Leefe,  Matter  of 

Lefevre  v.  Lefevre 

LetMngwill  v.  Warren 

Leggett  V.  Dubois 

V.  Hunter 

V.  Perkins 

I'.  Standard  Oil  Co. 

Lehigh  R.  R  Co  v.  Hall 

Lehman  v.  Kelly 

Leidig  v.  Coover's  Ex'r 

Leigh,  In  re 

Lei.<y  v.  Hardin  129, 

Lcmage  v.  Goodban 

Lemmon  v.  The  People 

Lent  ('.  Howard 

Lenzberg's  Policy 

Leonard  v.  Allen 

V   Leonard 

('.  Wilkins 

Lepanto,  The 

Leslie  v.  Leslie  165,  166, 

Levy  V.  Walker 

Lewis,  In  the  Goods  of 

Lewis  V.  Chapman 

V.  Courtright 

V.  Darling 

V.  Lewis  165 

— —  V.  Matthews 


Lewis  V.  Wildman 

Leyland  v  Stewart 

Licensed  Victuallers'  Newspaper  Co. 

V.  Bingham 
Life  &  Eire  Ins.  Co.  i;.  Mechanic  Fire 

Ins.  Co. 
Lightby  v  Clouston 
Like  V.  McKinstry 
Lincoln  v  Quynn 

V.  Wright 

Lindgren  v.  Lindgren 
Lindo  V.  Rodney 
Lindvall  v.  Woods 
Lindzey  v.  State 

Lingen  v.  Linpen 

Linkauf  v  Lombard 

Lipe  V.  Eisenlerd 

Litowitch  V.  Litowitch 

Little  i;.  Hall 

Littledale  v.  Bickersteth 

Little  Rock  v   Barton 

Livermore  v.  White 

Liverpool,  &c.  Assoc,  v.  Smith 

Livietta,  The 

Livuigston  L'.  Ackeston 

V.  Bishop 

V.  Livingston 

V.  Moore 

V.  Tanner 

IV  Williams 

Lloyd,  In  re 

Loan  V.  Etzel 

Lockett  V.  Hill 

Lockhart  v.  Horn 

Loffus  V.  Maw 


PAGE 

320 
502 

498 


384 
317 
93,94 
424 
603 
607 
472 
333 

55 
259 
359 
249 
182 
488 
655 
435 
474 

83 
480 
348 
561 
216 

50 

36 
150 
263 
227 
577 
138 
596,  597 


552 
160 
397 
132 
375 

23 
133 

29 
223 
514 
156 
487 
347 
281 
433 
594 
314 
664 
566 

85 
308 
452 
479 
,6.56 
550 
598 

81 

484 

629 

,590 

617 


LoUey's  Case  180,  181 

Lonas  v.  State  ^■->^ 

London  Chartered  Bank  of  Australia 

V.  Lempriere 
Long  ('.  Moon 

Longhead  v.  The  D  B.  Church 
Long  Island  R.  R.  Co.,  Matter  of 


Loom  Co.  V.  Higgins 

Loonier  c.  Wheelwright 

Lopez  V.  Burslem 

Lorant  v.  Scadding 

Lord  V.  Poor 

Lord  Chichester  v.  Coventry         62 

Lord  St.  John  v  Lady  St.  John 

Lord  Vane's  Case 

Lord  Walpole  v.  Lord  Orford 

Lorman  r.  Clark 

Lorrillard  v.  Town  of  Monroe 

Lot  of  Whalebone,  A 

Loud  V.  Loud 

Loughlin  v.  The  State 

Love  r.  Love 

Loveden  v.  Loveden 

Lovejoy  v.  Murray 

Lovell  V.  Quitman 

Lovell  Mfg  Co.  V.  Cary 

Lovering  r.  Lovering 

Lovet  V  Price 

Lovett,  In  re 

Lovett  V.  German  Ref.  Ch. 


224 
337 
631 

364,  365 
520 


221 
43 
361 
247 
624 
190 
229 
597 
68 
352 
479 
184 
332,  333 
183 
164 
561 
693 
513 
170 
348 
644 
364 


TABLE  OF  CASES. 


XXXIX 


Low  V.  Routledge 

PAGE 

5U0 

V.  Ward 

49(3 

Lowe  V.  Jolliffe 

591 

V.  Sinklear 

295 

Lowell  V.  Lewis 

507 

Lowenstein  v.  Salinger 

214 

Lovvrie  v.  Plitt 

454 

Lowry  v.  Fulton 

662 

Luby  V.  Cox 

319 

Lucas  V.  Mason 

325 

V.  Williams 

658 

u.  Williams  (No.  2) 

658 

Luce  V.  Dexter 

561 

Ludlam  v.  LudJam 

125 

Lufkin  V.  Mayall 

295 

Lumley  v.  Gye 

344,  345 

Lunay  v.  Vantyne 

348 

Lupton  V.  White 

487 

Lush  V.  Alburtis 

197 

Lutz  v.  Lutz 

185 

Luyties  v.  Hollender 

553 

Lygo  V.  Newbold 

342 

Lyle  V.  Clason 

81 

I'.  Ellwood 

156 

Lynch  v.  Clarke 

125 

V.  Gov't  of  Paraguay 

643 

V.  Livingston 

210 

Lynde  v.  Johnson 

86 

V.  Lynde 

166 

Lyon  V.  Colville 

612 

V.  Industrial  School  Assoc. 

656 

V.  Lyon 

183 

V.  Park 

644 

Macdonald  v.  Irvine  611 

V.  Macdonald  187 

Macdougal  v.  Knight  88 
Macdougall  v.  Jersey  Imp.  Hotel  Co.  397 

Machine  Co.  v.  Gage  4-35 

Mack  V.  Petter  498,  502 

V.  Story  424 

Mackey  v.  Ford  89 

Mackin  v.  United  States  60 

Macklin  v.  Richardson  489 

Maclean  v.  Cristall  154 

Macleod  v.  Wakley  89 

Macnichol,  In  re  647 

Maddox  i'.  State  322 
Madison  Ave.  Bap.  Ch.  v.  Oliver  St. 

Bap.  Ch.  10,  358,  376 

Magniac  v.  Thompson  216 

Magowan  v.  N.  Y.  Belting  Co.  516 

Mahan,  Matter  of  Accounts  of  613 

Malm  V.  Harwood  522 

Mahon  v.  Justice  76,  109 

Maine  v-  Grand  Trunk  Railway  Co.     129 

Maitland  v.  Adair  626 

jNIalachy  v.  Soper  93,  94 

Male  V.  Roberts  285 

Malin  v.  Malin  311 

Mallinson  v.  Mallinson  174 

Mangam  v.  Brooklyn  R.  R.  Co.  253 

V.  Peck  205 

^lanice  ".  Manice  466 

Mann  v.  Copland  610 


Mann's  Case 
Manning  v.  Beck 

V.  Cape  Ann,  &c.  Co. 

V.  Maimmg 

V.  Mitcherson 

V.  Spooner 

Mansel  v.  Attj'.-Gen'l 

Mansfield  v.  Mansfield 

Manville  v.  Belden  Mining  Co. 

Mapes  y   Weeks 

Maple  &  Co.  v.  Junior  A.  &  N.  Stores 


PAGE 

300 
664 
610 

186 
450 
652 

174,  265 
162 
358 

87,92 
497, 
503 
411 

175,  178 
549 


March  v.  Eastern  R.  R.  Co. 

V.  March 

Marcus  Ward  &  Co.  v.  Ward 

Markey  v.  Brewster 

Marlow  v.  Pitfeild 

Marquis  of  Lansdowne  i".  Marchion 

ess  of  Lansdowne 
Marsden  i'.  Kent 
Marsh  v.  Harris  Mfg.  Co. 

V.  Marsh 

Marshall,  In  the  Goods  of 

Marshall  v.  Crow's  Adm. 

V.  F.    &  M.    Savings  Bank  of 

Alexandria 

V.  Hamilton 

V.  Ross 

Marshalltown 
Marston  v.  Fox 

V.  Swett 

Martin,  Ex  parte 

V.  Gale 

V-  Lee 

V.  Martin 

u.  Niagara  Falls,  etc.  Co. 

V.  Robson 

Marx  I'.  McGlynn 

V.  The  Press  Pub.  Co. 

Maskell  v.  Farrington 
Mason,  Ex  parte 

V.  Blaireau 

V.  Mason 

Massam   y    Thorley's   Cattle   Food 

Co.  545,  548 

Masten  v.  Amerman  211 

Mathews  v.  Case  332 

IV  Cowan  802 

V.  Flower  508 

Mathewson  v.  Phoenix  Iron  Foundry    154 


348 

289 

651 
661 
529 
175,  598 
593 
460 

391 
148 
546 
436 

595 
528 
281 
289 
605 

175,  216 
359 
206 

133,  585 

92 

630 

102 

320 

170,  225 


V.  Stockdale 
Mathieson  v.  Harrod 
Matson  v.  Buck 
Mattby  v.  Harwood 
Matthews  v   Harsell 

V.  McStea 

V   Zane 

Maudslay  v.  Maudslay 
Maulsby  v.  Reifsnider 
Maurice  v.  Devol 
Maximilian  i;.  Mayor 
Maxwell  V.  Hogg 

V.  Palmerton 

V.  Stewart 

V   Wettenhall 

Maxwell's  Trusts,  Re 


497 
500 

92 
848 
475 
138 
7 
178 

89 
529 
366 
547 
452 
184 
657 
619 


xl 


TABLE    OF    CASES. 


PAGE 

309 

609 

535 

92 

151 

590 

398 

3!)1 

543,  546,  551 

210 

331 

475 

165,  173 

&  P.  M.  R.  R 


May  V.  Brown 

V.  May 

Maybury  v.  Grady 
Maver  v.  Hardy 
Mayiiard  v.  Heardsley 

V.  Hall 

V.  Vinton 

Mayor,  &c.  ot  Coldiester  v.  Brooke 
Mayor,  &c.  ot  Lichfield  v.  Simpson 
McAndrew  v.  Bassett 
M  Arthur  v.  Bloom 
M'Aulay  v.  Brownlie 
McAvoy  V-  Medina 
McBride  v.  McBride 
McCafferty  v.  S-  D. 

Co. 
McCall  V.  California 

. i;.  McDowell 

McCappin,  In  re 

McCartee  v.  Orphans  Asylum  Soc 

V.  Teller 

McCarthy  v.  Marsh 

V.  McCarthy 

V.  Metropolitan  Bd.  of  Works 

McClain  i'.  Ortmayer 
McClurg  V   Kingsland 

V.  McKercher 

V.  Ross 

V  Terry 

M'Collum,  Ex  parte 

McConnell  v.  Sherwood 

McCormick  v.  Hadden 

jM'Cormick's  Ex'rs  v.  Wright's  Ex^rs 

McCosker  i'.  Golden 

V.  Long  Island  R.  R.  Co 

McCoy  V.  Huffman 

McCready,  Ex  parte 

V.  Rumsey 

V.  Virginia 

McCreery  r.  Somerville 

McCuUoch  V.  Maryland 

McCullough  t;.  Moss 

McCurley  v.  Stockbridge 

McCutchen  v.  M'Gahay 

McCutchin  v.  Jamieson 

McDermott  v.  Boston 

V.  Hannibal  &  St.  J.  R.  R.  Co. 

McDonald  v.  Mallory 

V  Mass.  Gen'l  Hospital 

V.  Red  Wing 

McDowle,  Matter  of 

McFadden  v.  Commonwealth 

M'Gahay  v.  Williams 

M'George  v.  Egan 

McGihhon  v.  Abbott 

McGovern  v.  N.  Y.  Cent.  R.  R.  Co. 

McGowan,  Matter  of  Accounting  of 

McGraw,  Matter  of 

McGregor  i".  Ball 

I'.  Comstock 

McGuire  v.  Parker 

M'llvaine  v.  Coxe's  Lessee 

Mclnturf  V.  State 

McKay  r.  Wooster 

McKay's  Case 

McKibbin  v.  Fort  Smith 


PAGE 

204 

109 

333 

82 

55 

134 

457 

280 

74 

341 

235 


338 

129 

58 

127 

369 

298 

127,  134 

165 

428 

516 

527 

246 

83 

151 

41 

563 

424 

663 

197 

331 

247,  294 

101 

409 

128 

134 

354 

884 

202 

203 

320 

332 

333 

254 

343 

430 

319 

65 

203 

231 

605 

2.52 

6.56 

375,  633 

441 

1.34 

129,  437 

121 

55 

526 

306 

431 


McKinney  v  Guhman 
McKnight,  Ex  parte 
McKune  v.  Cal.  So.  R.  R.  Co. 
McLaughlin  v.  Russell 
McLean  v.  Bann 

V.  Swanton 

McLeod  V.  Evans 

McLoskey  v.  Reid 

McMahon  v.  Palmer 

M'Manus  v.  Crickett 

McMillen  v.  Lee 

V.  The  County  Judge  of  Lee 

County 
McMurray  v.  McMurray 
McNees  v.  Thompson 
M'Neillie  v.  Acton 
McNiel  V.  Holbrook 
McPeck  V.  Moore 
McPherson  v.  Commonwealth 
M' Queen    v.    Middleton    Mfg.    Co. 

Matter  of 
Mead  i;.  Billings 

V.  Maben 

V.  Stratton 

Meades,  In  re 

Meakin  v.  Morris 

Meakings  v.  Cromwell 

Mechanics'   Bank  r.  N.  Y.  &  N.  H. 

R.  R.  Co.  408,  409 

Medbury  v.  Watrous  295 

Medley,  Petitioner  54,  55 


29 
299 
308 
659 

22 
318 
149 


322 
614 
227 
245 
318 
133 


Medley,  Re 

Medway  v.  Needham 

Mellen  v.  Mellen 

Mel  wish  v.  Milton 

]\Ieneely  v.  Meneely 

Menendez  v.  Holt 

Meo  V.  Meo 

Merchants'  &  Farmers'  Bank  v.  Aus 

tin 
Meredith  v.  Footner 
Meriam  v.  Harsen 
Merivale  v.  Carson 
Merrell  v.  Tice 
Merriam  v.  Cunningham 

V.  Wolcott 

Merrill  v.  Eastern  R.  R.  Co. 

V.  Yeomans 

Merry  v.  Hooper 

Merryweather  v.  Moore 

Messenger  r.  Bliss 

Met.  Board  of  Excise  i'.  Barrie 

Metcalf  V.  Framingham  Parish 

Mette  V.  Mette 

Metzger,  Matter  of 

Metzler  v.  Wood  498 

M.  E.  Union  Church  v.  Pickett 

Meyer  v.  Meyer 

Meyer  Bros.  v.  Cook 

Mickles  v.  Rochester  City  Bank 

Middleton  r.  Hoge 

Middletown,  Matter  of  Village  of 

Mil.  &  Miss.  R.  R.  Co.  v.  Finney 

Milburn,  Ex  parte 

Miles  V.  Caldwell 

V.  Harford 


244 
158 
604 
644 
545 
550 
160 


457 

231 

208,  210 

89 

501 

286 

149 

252 

512 

550 

327 

308 

433,  436 

609 

146,  285 

99,  104 

502,  545 

356 

145 

481 

350 

294 

39 
336 

99 

24 
615 


TABLE  OF  CASES. 


xli 


Milford  V.  Milford 

PAGE 
185 

Moore  v.  Monroe 

PAOB 

56 

Millard  v.  Hewlett 

293 

V.  Moore 

168 

,  848 

Miller  v.  David 

86 

V.  State 

149 

r.  Foree 

513 

V.  The  Explosives  Co. 

394 

V.  Huddlestone 

620 

V.  United  States 

72 

V.  Miller 

219,  259 

,347 

Moorman  v.  Hoge 

554 

V.  Travers 

607 

Moorsom  v.  Moorsom 

169 

V.  Union  Pac.  R.  R. 

Co. 

332 

Moran  v.  Goodwin 

227 

Millett  V.  People 

74 

Mordaunt  v.  Moncreiffe 

163 

Milligan,  Ex  parte 

58 

V.  Mordaunt 

162 

Millington  v.  Fox 

551 

Mordecai  v.  Pearl 

295 

Mills  V.  Brown 

612 

Morehouse  v.  Cooke 

275 

V.  Hoffman 

660 

Morewood  i-.  Wakefield 

452 

V.  Robarts 

656 

Morgan,  Ex  parte 

105 

Milltown,  Earl  of  v.  Trench 

655 

Morgan,  In  re 

659 

Millward,  Midland  R.  R.  Co. 

335 

Morgan  v.  Chetwynd 

201 

Milman  v.  Shockley 

452 

V.  Hannas 

282 

Milner  v.  Milner 

186 

V.  Hudson  Riv.  Ore  &  Iron  Co. 

329 

Milnes  v.  Slater 

652 

V.  Morgan                          161 

,  188 

617 

Miner  v.  Brown 

197 

V.  Skiddy 

392 

Minesinger  v.  Kerr 

93 

V.  Vale,  &c.  Ry.  Co. 

331 

Minneapolis  &  St.  Louis 

Ry.  Co.  V. 

Moriarty  v.  Moriarty 

165 

Beckwith 

131 

Morison  n.  Salmon 

550 

Minneapolis   Threshing 

Mach.   Co. 

Morrell  r.  Dickey 

280 

V.  Davis 

406 

V.  Morrell 

167 

168 

Minnesota  r.  Barber 

129 

,436 

Morris  v.  Brown 

342 

Minor  i'.  Jones 

150 

V.  Davies 

173 

261 

Minot  1-.  Paine 

618 

V.  Kent 

617 

Missouri  v.  Lewis 

74 

V.  Sickly 

628 

Missouri  Pac.  K.  R.  v.  Mackey 

76 

V.  Wright 

503 

Mitchell  V.  Crassweller 

342 

Morse  v.  Ely 

294 

V.  Mitchell 

164 

V.  Wheeler 

292 

V.  Moberly 

635 

Mortara  v.  Hall 

288 

V.  Robinson 

332 

Mortimore  v.  Wright 

234 

Mitcliinson  v.  Hewson 

199 

Morton  v.  N.  Y.  Eye  Infirmary 

512 

Mitford  u.  Reynolds 

634 

Moss  V.  Oakley 

384 

Mixon  V.  The  State 

66 

V.  Robinson 

597 

Mizen  j;.  Pick 

204 

Mosselman  v.  Caen 

580 

Mobile,  County  of,  v.  Kimball 

559 

Moulin  V.  Ins   Co. 

379 

Mockey  v.  Gray 

276 

Moultrie  v.  Hunt 

587 

643 

Moebus  V.  Herrmann 

341 

Mountain  v.  Fisher 

295 

Moffat  V.  Burnie 

655 

Mouse's  Case 

431 

V.  Winslow 

350 

Movins  V.  Lee 

391 

MofBtt  V.  Cavanagh 

540 

Moyle  V.  Moyle 

662 

V.  Rogers 

523 

Moynahan  v.  Wheeler 

452 

Moggridge  v.  Thackwell 

612 

Mrs.  Alexander's  Cotton 

470 

Mohr,  In  re 

107 

Mugler  V.  Kansas 

432 

440 

Mohry  v.  Hoffman 

248 

Muir  V.  Wilson 

277 

Moletor  v.  Sinnen 

109 

Mulkem  v.  Ward 

82 

Moller,  In  re 

576 

Mullaly  V.  The  People 

451 

Mondorf,  Matter  of 

585 

Mullarky  v.  Sullivan 

614 

Monell  V.  Monell 

275 

MuUer  v.  Struppman 

279 

Mongeon  v.  The  People 

40 

Mulligan  v.  N.  Y.  &  R.  B.  Ry. 

Co. 

336, 

Monopolies,  Case  of 

505 

.340 

Montague  v.  Baron 

201 

MulHns  V.  Smith 

611 

620 

V.  Benedict 

201 

Mulvehall  v.  Millward 

248 

Montgomery  v.  Montgomery 

174 

Mumby  v.  Bowden 

338 

Montross  v.  The  State 

65 

Munger  v.  Munger 

347 

Moody  V.  Baker 

86 

Munn  V.  Illinois 

76 

V.  Leverich 

328 

Munro  v.  Merchant 

122 

V.  Matthews 

196 

V.  Munro 

258 

Moon's  Adm.  r.  R.  &  A. 

R.  R.  Co. 

333 

Munson  v.  Munson 

183 

Moore  v.  Fitchburg  R.  R 

336 

Munster  v.  Lamb 

89 

V.  Hegeman 

159,  178 

179 

Murdock,  Appellant 

388 

V.  Met.  Ry.  Co. 

340 

3R8 

V.  Phillips  Academy 

.388 

V.  Meyer 

564 

Murphy,  Ex  parte 

364 

xlii 


TABLE  OF  CASES. 


Murpliy  V.  Boston  &  Albany  R. 
Co. 

V.  Manning 

V.  Phillips 

V.  Smith 

Murpliy,  &c.  Oath  Cases 
Murray  i'.  EUiston 

I'.  Usher 

Murray's   Lessee  v-   Hob.   Land 

Imp.  Co. 
Musket  V.  Cliffe 
Mutual  Ass.  Soc.  v.  Watts 
Myers  i;  Callaghan 

i:  Myers 

Mygatt  I'.  Washburn 
Myles  r.  Benton 


331 
453 
329 
332 
63 
495 
346 


& 


68 
626 

22 

497,  500 

235 

44 
222 


PAGB 

435 
235 
515 
644 
522 
552 


N.  V.  N.  186 

Nanz  V.  Oakley  662 

Nash  V.  Jewett  286 

!•.  People  96 

Nashville,  &c.  Ry.  v.  Alabama  59 

Nassau  Bank  v.  Jones  359 

Nathan  !-••  Tompkins  397 

V.  Whitlock  407 

National  Bank  r.  Insurance  Co  457 

I'.  Norton  368 

V.  Yankton  66 

National  Funds  Ass.  Co.,  In  re  397 

National  Life  Ins.  Co.,  In  re  677 

National  Park  Bank  i\  Nichols  377 
National  Progress,  &c.,  Mach.  Co.  v. 

Williams  Co.  515 

Neagie,  In  re  101 

Neal  V.  Gilmore  348 

Neate  r.  Pickard  598 

Ned  V.  State  65 

Needham  r.  Rivers  P.  &  M.  Co.  396 

Neel's  Adm.  v.  Neel  348 

Neill,  Re  101 

Neilson  v.  Harford  517 

Neimcewicz  ;•.  Gahn  221 

Nelichka  v.  Esterly  326 

Nelson,  In  the  Goods  of  594 

Nesmith  v.  Sheldon  24 
Ncu  V.  McKeehnie                   227,  228,  229 

Neuberger  i\  Keim  216 

Neves  v   Scott  24 

Nevin,  In  re  246 
Newall,  In  re                                     511,  517 

Newbery,  In  re  245 

V.  James  518 

Newbury  Turnpike  Road  v.  Miller,  36 
Newell  '■.  People  41 
?•.  The  Great  Western  Railway 

Co.  379 
New  Haven  Pat.  Spring  Bed  Co.  v. 

Farron  550 
New    Hope   Bridge   Co.  v.   Phoenix 

Bank  368 

Newling  v.  Francis  864 

Newman  v.  Alvord  546 

V.  Kent  629 

1-.  M.  E.  Ry.  Co.  4-29 

V.  Newman  170 


New  Orleans  v.  Dubarry 

Newport  v.  Cook 

Newton  v.  Grand  Junction  Ry.  Co. 

V.  Met.  Ry.  Co. 

New  York  Belting  Co.  v.  Sibley 

New  York  Cab  Co.  v.  Mooney 

New  York  Card  Co.  v.  Union  Card 
Co. 

New  York  El.  R.  R.  Co.,  Matter  of 

New  York  Firemen  Ins.  Co.  v.  Ely 

New  York  Life  Ins.  Co.  v.  Statham 

New  York  Mut.  Life  Ins.  Co.  v.  Arm- 
strong 

New  York  &  Brooklyn  Bridge  Co., 
Matter  of  35,  39 

New  York,  &c.  R.  R.  Co.,  v.  Boston, 
&c.  R.  R.  Co.  559 

New  York  &  N.  H.  R.  R.  Co  i'. 
Schuyler  384,  409 


546 

42 

384 

138 

637 


Niboyet  v.  Niboyet 
Nichole  v.  Allen 
Nichols  V.  Ashton 

V.  Guy 

Niciiolson  V.  Nicholson 

Nickels  i'.  Haslani 

Nickerson  v.  Howard 

Nicol  !.'.  Stockdale 

NicoU,  Matter  of 

NicoU  V.  N.  Y.  &  Erie  R.  R.  Co. 

Niles,  Matter  of 

Nisbett  V.  Murray 

Nitchie  v.  Townsend 

Nixon  V.  Texas  Pac.  Ry.  Co. 

Nobel's  Exp.  Co.  v.  Jones 

Noel  V.  Kinney 

Nolan  V.  Jones 

Norcross  v.  Norcross 

Norfolk  R,  R.  v.  Pennsylvania 

Norris  v.  Beyea 

V.  Norris 

V.  Vance 

North  V.  North 

Northcote  v.  Doughty 

Northern  Pac.  Ry.  Co  v.  Herbert 

V.  Mares 

V.  Peterson 

North  Hudson  County  R.  R.  Co.  i;. 

Hoboken 
Northwest  Trans.  Co.  v.  Beatty 
Northwestern  Mut.  Life  Ins.  Co.  v. 

Overholt 
Norton  v.  Fazan 
Novello  V.  Ludlow 
Nowlen  v.  Colt 
Noyes,  Matter  of 
Nugent  V.  Vetzera 
Nunneley  v.  Nunneley 
Nuthall  V.  Vining 
Nuttall  V.  Hargreaves 


181 
264 
424 

85 
171 
517 
321 
494 
275 
375 
663 
611 

44 
333 
533 
214 
302 
154 
129 
196 
177 
292 
166 
296 
333 
335 
332 

436 
396 

382 
203 
503 
486 
109 
280 
178 
552 
517 


Oakes  v.  Oakes  621 

V.  Turquand  395,  401 

Obier  V.  Neal  256 

O'Brian  v.  Commonwealth  64 

O'Brien  v.  Gaslin  291 


TABLE  OF  CASES. 


xliii 


PAGE 

PAGB 

Occleston  v.  FuUalove 

303 

Palmer  v.  WagstafE 

533 

O'Dea  V.  O'Dea 

160 

180 

Palmeri  v.  Manhattan  Ry.  Co. 

336 

O'Gara  v.  Eisenlohr 

156 

Pandorf  v.  Hamilton 

6 

Ogden  V.  Saunders 

577 

Pankhurst  v.  Howell 

623 

Osg  V.  City  of  Lansing 

366 

367 

Paper  Bag,  &c.  Co.  v.  Nixon 

530 

O'Hara,  Will  of 

635 

Parchman  v.  The  State 

67 

Ohio  &  M.  R.  R.  Co.  v.  Wiieeler 

377 

381 

Paris  V.  Levy 

89 

Oldham  v.  Carleton 

638 

Parish  v.  Wheeler 

358 

O'Leary  v.  Douglass 

595 

Parishes  of  St.  George  v.  St.  Mar- 

 V.  Frisbey 

228 

garet 

190 

Oliver,  Re 

58 

Parke's  Charity,  Re 

376 

V.  Oliver 

490 

Parker,  In  re 

m 

V.  Rumford  Chem.  Works 

529 

Parker  v.  Baxter 

424 

V.  Washington  Mills 

120 

V.  Bloxam 

661 

Olmsted  V.  Keyes 

198 

212 

r.  Hulme 

531 

O'Mara  v.  Hudson  Riv.  R.  R.  Co 

253 

V.  Kane 

22 

O'Meagher  v.  O'Meagher 

591 

V.  Stiles 

520 

O'Neil,'  Matter  of 

31 

Parkes  v.  Prescott 

81 

,  Matter  of  Will  of 

587 

588 

Parkinson  v.  Laselle 

501 

Onions  v.  Tyrer 

504 

Parks,  'Ex  parte 

99 

,  100 

Oregon,  The 

253 

Parmiter  v.  Coupland 

88 

Oregon  Bulletin  Printins:,  &c.  Co., 

V.  Parmiter 

625 

In  re 

570 

Parnell,  in  the  Goods  of 

273 

O'Reilly  v.  Morse 

509 

Parnell  v.  Parnell 

162 

Ormiston  v.  Olcott 

660 

661 

Parrott  v.  Worsfold 

611 

Ormsby  v.  Douglass 

88 

Parsee  Merchant's  Case 

311 

V.  Vermont  Copper  Min.  Co 

381 

Parsons  v.  Bedford 

71 

Orr  V.  Diaper 

552 

Partlow  r.  Cooke 

348 

Orr  Ewing,  Iti  re 

667 

Parton  v.  Prang 

489 

Orser  v.  Hoag 

121 

Partridge  v.  Badger 

364 

,384 

Ortmann  i'.  (Jrtmann 

189 

r.  Mends 

542 

Osborn  v.  Gillett 

340 

344 

Pass  V.  Dundas 

663 

Osborne  v.  Duke  of  Leeds 

612 

Paterson  v.  Paterson 

185 

V.  Morgan 

346 

V.  Wallace 

329 

Osgood  V.  Allen 

498 

Patterson  v.  Gaslight  &  Coke  Co 

510 

Osgood  V.  Osgood 

165 

V.  The  State 

66 

Osterhout  v.  Shoemaker 

309 

Pattison  v.  Pattison 

621 

Oteiza  y  Cortes,  Luis,  In  re 

115 

Patton  V.  Patton 

443 

Otteridge  r.  Thompson 

138 

V.  Western  N.  C.  R.  R.  Co. 

333 

Ottley  V.  Gilby 

662 

Paul  V.  Virginia 

129 

3-53 

Overend  &  Gurney  Co.  v.  Gibb 

.391 

Paule  V.  Coding 

201 

Owen  V.  Delamere 

659 

Paulin  V.  Howser 

238 

V.  Owen 

647 

Pauline,  The 

478 

479 

Owens,  Matter  of 

307 

Paxton  V.  Douglas 

665 

,Re 

664 

Peabody,  In  tiie  Goods  of 

588 

Owens  V.  Owens 

637 

Peacock  ;•.  Monk 

224 

Oxford  Ben.  B'ld'g  Soc.  In  re 

397 

V.  Oaks 

V.  Peacock 

Peard  v.  Johnson 

228 
168 
508 

P.  V.  L. 

147 

V.  Morton 

614 

P.  V.  S. 

147 

Pearson,  In  re 

98 

Pack  V.  Mayor,  &c.  of  N.  Y. 

337 

Pearson  v.  Pearson 

549 

Paddock  v.  Salisbury 

92 

V.  Yewdall 

50 

Page  V.  Allen 

29 

Pearson's  Case 

396 

V.  Leapingwell 

620 

Pease  v.  Chicago  &  N.  W.  R.  R. 

Co. 

332 

V.  Morse 

295 

V.  Pease 

167 

Paget  V.  Hurst 

610 

V.  Peck 

23 

Palin  V.  Brookes 

609 

Peck  V.  Bacon 

526 

Palmer  v.  DeWitt 

489 

V.  Peck 

152 

154 

V.  Haight 

92 

Peek  V.  Derry 

393 

V.  Holford 

615 

V.  Gurney 

393 

V.  Hummerston 

90 

Peek's  Trusts,  In  re 

613 

V.  Hussey 

572 

Peel's  Case 

401 

V.  Mich.  Cent.  Ry.  Co. 

333 

Peik  V.  Chicago  &  N.  W.  R.  R.  Co. 

23. 

V.  Palmer 

184 

,189 

399 

V.  Rouse 

478 

Pellage  v.  Pellage 

348 

xliv 


TABLE    OF   CASES. 


Pembina  Min.  Co.  v.  Pennsylvania 
75,  131 

PAGE 

74, 
351 

People  V.  Kling 
V.  Lake 

FAOE 

263 
263 

Penedo  v.  Johnson 

377 

V.  Landt 

268 

Penn  r.  Bibby 
Peiin.  Co.  V.  Hoy 
Pciinefatlier  v.  Bury 

517 
337 
655 

V.  Malony 

V.  Marx 

...-      y.  Mayor  of  Brooklyn    425,426 

451 
438 
559 

Peiiiit'jiiir  V   State 

159 

V.  Mavor  of  Syracuse 

36 

I'eiinull  V  Koy 

665 

V.  McLeod                                 97, 

124 

Peiiniman  v.  Elliott 

566 

V.  Meakim 

66 

Pennoyer  v.  Neff 
Penrose  v.  Curren 

378 
302 

V.  Mercein                        225,  242 
V.  Moores                                 262, 

243 

296 

People  V.  Albertson 

42 

V.  Morrell 

28 

I".  Anderson 

473 

V.  Murray 

66 

V.  Arensberg 

433 

438 

V.  Neilsoa 

96 

V.  Asten 

38 

V.  Newton 

383 

r.  Baker 

183 

V.  New  York  &  M.  B.  Ry.  Co. 

39 

V.  Ballard 

397 

V.  New  York  Cent.  R.  R.  Co.    31,  42 

V.  Bank  of  Hudson 

400 

V.  New  York  Juvenile  Asylum 

322 

V.  Bartholf 

156 

V.  Olmstead 

242 

(;.  Batchelor 

361 

V.  Palmer                                       40,  65 

V.  Board  of  Police 

41 

V.  PenhoUow 

61 

V.  Board  of  Supervisors  of  W, 

V.  Phipps 

490 

County 

29 

V.  Pillow 

319 

V.  Brady 

108 

I'.  Pinkerton 

108 

I'.  Bristol,  &c.  Turnpike  Road  Co. 

400 

V.  Porter,  alias  Cooper 

98 

V.  Budd 

435 

V.  Prot.  Epis.  House  of  Mercy   97,  98 

V.  Byrnes 

106 

108 

V.  Quigg 

40 

V.  Campbell 

451 

V.  Rauscher      104,  110,  111,  112 

116 

V.  Casborns 

65 

V.  Raymond 

65 

V.  Cassels 

98 

V.  Schmidt 

66 

V.  Charbineau 

32 

V.  Sheriff 

98 

V.  Chegaray 

242 

V.  Simonson 

631 

V.  City  Bank  of  Rochester 

457 

V.  Supervisors  of  Orange  County 

42 

V.  City  of  Brooklyn 

40 

V.  Swan 

473 

V.  Clark 

66 

V.  Taylor 

154 

V.  Cogdell 

473 

V.  Townsend 

303 

V.  Comstock 

67 

V.  Trinity  Church 

350 

V.  Conklin 

132 

('.  Trustees  of  Geneva  Coll. 

400 

.  I'.  Cooper 

242 

V.  Utica  Ins.  Co. 

400 

V.  Court  of  Sessions  of  Ontario 

V.  Walts 

242 

County 

261 

V.  Watts 

273 

V.  Covvles 

98 

V.  Wemple 

129 

V.  Cross 

109 

V.  Wilcox 

242 

c.  Curtis 

111 

V.  Winters 

229 

V.  Davenport 

38,  39 

V.  Wood 

38 

V.  Dawell 

182 

,  183 

People,  ex  ret.  Tweed  v.  Liscomb 

96 

V.  D'Oench 

437 

Pepperell,  Re 

645 

V.  Donohue 

108 

Percy,  In  re 

657 

V.  Equitable  Trust  Co. 

436 

Perkins,  Matter  of 

310 

V.  Faber 

178 

Permoli  v.  First  Municipality 

56 

V.  First  Judge  of  Livingston 

319 

Perris  v.  Hexamer 

503 

V.  Fisher 

42 

Perry  v.  Perry                           187,  189 

347 

V.  Gail 

58 

V.  Truefitt 

542 

V.  Gallagher 

75 

V.  Whitehead 

656 

V.  Gates 

39 

Peru,  Republic  of,  v.  Weguelin 

377 

V.  Gillson 

74 

,438 

Pervear  v.  Commonwealth 

70 

V.  Goodwin 

65 

Peters  v.  Peters 

454 

V.  Green 

39 

Petersen  v.  Chemical  Bank 

644 

V.  Higgins 

66 

Peterson  v.  Haffner 

302 

V.  Humphreys 

242 

Petition  of  United  States,  Matter  of 

429 

V.  Jacobs 

96 

Pettee  v.  Pettee 

165 

V.  Kaatz 

473 

Pettengill  v.  City  of  Yonkers 

367 

V.  Kemmler 

70 

Pettit  V.  Pettit 

218 

V.  King 

75 

,437 

Petty  V.  Roberts 

292 

V.  Kingston    &    M.    Turnpike 

V.  Tooker 

636 

Road  Co. 

400 

Phelan  v.  Douglass 

285 

TABLE    OF   CASES. 


xlv 


PAGE 

Phelps  V.  Brown  507,  512 

V.  Culver  321 

V.  P.  C.  &  S.  R.  R.  Co.  316 

V.  Robbins  588 

Phila.  Fire  Assoc,  v.  New  York      75,  353 

Phila:  Nat.  Bank  v.  Dowd  457 

Philip  V.  Philip  175 

Philippi  V.  Wolff  226 

Philips  V.  Clift  317 

V.  Philips  625 

Phillips  V.  Allen  261 

i:  Barnet  229 

V.  Horn  fray  6-50 

V.  Innes  317 

V.  Library  Co,  379 

I'.  Overfield  457 

V.  Parry  652 

V.  People  65 

V.  Turner  622 

Phoenix  Bank  i'.  Risley  471 

PhcBnix  Nat.  Bank  v.  Batcheller  578 

Pickard  v.  Smitii  339 

Pickens  v.  Miller  664 

Pickering  v.  McCuUough  508 

V.  Stephenson  357,  391 

Pierce  v.  Bartrum  366 

V.  Massenburg  319 

V.  New  Hampshire  433 

V.  O'Brien  580 

V.  Swan  Point  Cemetery  454 

Pierre  v.  Fontenette  150 

Pierrepont  v.  Edwards  610 

Piers  V.  Piers  155 

Pierson  r.  Garnet  654 

V.  Post  480 

Pike  V.  Fitzgibbon  222 

V.  Nicholas  503 

Pillow  V.  Bushnell  225 

Pinnel's  Case  566 

Piper  V.  Brown  532 

Pitcher  v.  Carter  277 

Pitchford  v.  Hulme  648 
Pitt  V.  Pitt                                        170,  230 

Pitts  V.  Hall  508 
Pittsburgh,  &c.  R.  R.  Co.  v.  Brown      435 

Plasket  i:  Beeby  299 

Plaskett,  In  re  264 

Platner  v.  Sherwood  78 

Piatt  V.  Button  491 

I'.  Walton  496 

Plimpton  V.  Malcolmson  518 

^^  Spiller  509,  510,  519 

Plowden  v.  Plowden  185 

Plowes  V.  Bossey  174 
Pocantico  Water  Works  Co.  v.  Bird     426 

Poe  V.  Duck  578 

Poindexter  v.  Greenhow  381 

Pole  V.  Lord  Somers  625 

Polka,  The  471 

Pollard  V.  Photo  Co.  493 

Pomero  i'.  Pomero  169 
Pomeroy  v.  Wells                            203,  204 

Ponsford  v.  Hartley  665 

Pool  V.  Pool  189 

Poor,  Guardians  of,  v.  Nathans  154 

Pope  V.  Curl  491 


Pope  V.  Terre  Haute  Car  Mf  g  Co. 

PAGE 

379 

Pope  Mf  g  Co.  V.  GormuUy  Mf  g  Co 

(N'o.  3) 

527 

V.  Owsley 

529 

Poplett  V.  Stockdale 

493 

Poppenhusen  v.  Falke 

531 

Port  I'.  Port 

152 

Porter  v.  Briggs 

202 

V.  Burnett 

447 

V.  Dunn 

213 

V.  Powell 

235 

r.  State 

473 

Portland  r.  Bangor 

74 

Portland,  City  of,  v.  Richardson 

327 

Post  V.  Hover 

603 

r.  T.  C.  Ricliards,  &c.  Co. 

513 

Potinger  v.  Wightman                      255 

,279 

Potter  V.  Dixon 

534 

V.  Faulkner 

349 

V.  Holland 

526 

V.  jNIcPherson 

546 

V.  State 

65 

Potts  V.  Port  Carlisle  Dock,  &c  Co 

329 

Powell  V.  Apollo  Candle  Co. 

43 

V.  Construction  Co. 

337 

V.  Hutchins 

84 

v.  Oakley 

298 

V.  Pennsylvania                       433 

,438 

V.  The  People 

41 

V.  Waldron 

447 

Power  V.  O'Connor 

391 

V.  Power 

186 

V.  Village  of  Athens 

33 

Powers  V.  Bergen 

277 

I'.  Ware 

819 

Powles  V.  Hider 

342 

Pratt  V.  Bryant 

487 

V.  Pratt,  Read  &  Co. 

411 

Preston  v.  Drew 

433 

V.  Melville 

667 

V.  Palmer 

637 

V.  Preston 

627 

V.  Spaulding 

564 

Pretzinger  r.  Pretzinger 

239 

Price  V.  Anderson 

619 

V.  Hathaway 

635 

V.  Hewett 

287 

V.  Powell 

593 

V.  Price 

176 

Prichard  v.  Prichard 

187 

Priestley  v  Fowler 

331 

Priestman  v.  Thomas 

600 

Prince  Albert  v.  Strange 

491 

Prince  Mfg  Co.  v.  Prince  Metallic 

P.  Co. 

551 

Pringle  v.  Woolworth 

379 

Prize  Cases,  The 

472 

Proctor  V.  Bennis 

538 

V.  Sears 

293 

Proudley  v.  Fielder 

195 

Prout  V.  Wiley 

291 

Prudential  Co.  v.  Knott 

82 

Puetz  V.  Bransford 

514 

Pugh  V.  Bussel 

578 

Pulbrook,  In  re 

241 

Pulbrook  I'.  Richmond  Con.  Min.  Co. 

396 

xlvi 


TABLE  OF  CASES. 


Pulling  V.  Gt.  Eastern  Ry.  Co. 
Pumpelly  V.  Green  Bay  Co. 

V.  Village  of  Owego 

Purcell  V.  Purcell 
Purdy  V.  Roch.  Printing  Co. 
Purse  I'.  Snaplin 
Putnam  v.  Payne 

V.  Town 

V.  Wyley 


PAGE 

251 
428 

38 
166,  655 

82 
620 
452 
347 
482 


Quain  v.  Russell 
Queen  v.  Bertrand 

V.  Brighton 

V.  Buck 

V.  Charlesworth  63 

. V.  Clarke 

V.  Deaves 

V.  Dickenson 

V.  Duncan 

V.  Durham 

V.  East.  Archipelago  Co. 

V.  Glyde 

V.  Howes  174, 

V.  Inhab.  of  St.  Mary  Magdalen 

V.  Jackson 

V.  Keyn  122, 

V.  Knight 

V.  Lady  Young 

'         V.  Lundie 

V.  Matthews 

V.  Millis  20,  153,  154, 

V.  Nash 

t'.  Kellins 

V.  Pierce 

V.  Preston 

V.  Price 

V.  Prosser  507, 

V.  Registrar  of  Joint  Stock  Co.'s 

V.  Saddlers'  Co. 

V.  Scaife 

V.  Stephenson 

V.  Thurborn 

V.  Weil 

V.  Wernway 

i\  West 

V.  Wood  366, 

Quigley  v.  United  States 

Quilty  I'.  Battle  206, 

Quin's  Estate 


227 
67 
146 
558 
,64 
241 
474 
366 
67 
354 
536 
474 
240 
319 
225 
123 
474 
449 
366 
474 
161 
262 
112 
474 
474 
455 
536 
356 
362 
67 
455 
474 
114 
487 
473 
474 
139 
452 
222 


Raddle  v.  Norman 
Radley  ik  Kennedy 
Raffenel,  In  the  Goods  of 
Raggett  V.  Findlater 
Rahrer,  In  re 
Railey  v.  Lanahan 
Railroad  Co.  v.  EUerman 

V.  Georgia 

V.  Hanning 

V.  Harris 

V.  Morey 

V.  Tax  Case 

Railway  v.  Gentry 
V.  Stutler 


546 
286 
587 
545 
433 
327 
359 

24 
338 
377 
339 

76 
359 
247 


PAGE 

Railway  Co.  v.  Hutchins  484 

V.  Whitton  377 

Railway  Reg.  M'fg  Co.  v.  No.  Hudson 

Co.  R.  R.  Co.  509,  522 

Rainsford  v.  Tayntoa  646 

Ralston  v.  Ralston  183 

V.  Smith  513,  521 

Ramsey  v.  Ramsey  239 

Ranee's  Case  397,  398 

Rand  v.  Hubbell  618 

Randall  v.  Rotch  320 

Ranger  v.  Gt.  Western  Ry.  Co.  368 


Rannels  v.  Gerner 
Ransom  v.  Nichols 
Rantz  V.  Barnes 
Rapalje  v.  Hall 
Raphael  v.  Boehm 
Rasche,  The 
Rash  V.  Halloway 
Ratcliff  V.  RatclifE 
Raven  v.  Waite 
Ray  V.  Adden 

V.  Tubbs 

Raymond  v.  Loyl 

V.  Minton 

Rayner  v.  Mitchell 
Read  v.  Hodgens 

V.  Legard 

V.  Richardson 

V.  W^illiams 

Reade  v.  Bentley 

V.  Conquest 

V.  Livingston 

Redway  v.  Ohio  Stove  Co. 
Reed  v.  Cutter 

V.  Holliday 

V.  Home  Savings  Bank 

V.  State 

Reedis  v.  Lond.  &  N.  W.  Ry.  Co, 
Reel  I'.  Elder 
Rees  V.  Peltzer 
Reese  v.  Biddle 
Reeves  v.  Newenham 
Reeves'  Trusts,  In  re 
Reggel,  Ex  parte 
Reg.  V.  Bertrand 

V.  Brighton 

V.  Buck 

V.  Charlesworth 

V.  Clarke 

V.  Deaves 

V.  Dickenson 

V.  Duncan 

V.  Durham 

V.  East  Archipelago  Co. 

V.  Glyde 

V.  Howes 

V.  Inhab.  of  St.  Mary  Magdalen  319 


308 
197,  198 
228 
282 
664 
480 
129 
170 
656 
202 
302 
235 
316 
342 
634 
202 
647 
635 
501 
504 
216 
532 
507 
505 
369 
473 
337 
183 
489 
332 
652 
616 
106 

67 
146 
558 
63,64 
241 
474 
366 

67 

354 

536 

474 

174,  240 


105, 


V.  Jackson 
V.  Keyn 
V.  Knight 
V.  Lady  Young 
V.  Lundie 
V.  Matthews 
V.  Millis 
V.  Nash 


225 
122,  123 
474 
449 
366 
474 
20,  153,  154,  IGl 
262 


TABLE   OF   CASES. 


xlvii 


PAGE 

PAGE 

Reg.  V.  Nillins 

11-2 

Rice  V.  Parkman 

279 

V  Pierce 

474 

V.  Rice 

308 

V.  Preston 

474 

V.  Williams 

490 

V.  Price 

455 

Rich  V.  Whitfield 

627 

V.  Prosser 

507 

536 

Richard  v.  Brehm 

154 

V  Registrar  of  Joint  Stock  Co.'s 

356 

Richards  y.  Clarksburg 

362 

V.  Saddlers'  Co. 

362 

y.  Collins 

243 

V.  Scaife 

67 

Richardson,  Ex  parte 

659 

V.  Stephenson 

455 

Richardson  v.  Allen 

86 

i\  Thurborn 

474 

V.  Dubois 

202 

V  Weil 

114 

y.  Greese 

625 

V.  West 

473 

y.  Morgan 

626 

u.  Wood 

366 

474 

y.  Richardson 

618 

Reiche  v  Smyth 

32 

Richardson's  Case 

300 

Reid,  In  the  Goods  of 

588 

Riddell  v.  Errington 

209 

Reid  V.  Teakle 

201 

Riddle  v.  Driver 

484 

Remington  o.  Walker 

664 

Rider  Life  Raft  Co.  v.  Roach 

358 

359 

Rendall  v.  Rendall 

665 

Ridgway  v.  Hungerford  Market  Co. 

327 

Reneaux  v.  Teakle 

200 

Ridley  v.  Ridley 

596 

Renihan  v.  Wright 

454 

Rigney  v.  City  of  Chicago 

428 

Rensselaer  R.  R.  Co.  v.  Davis,  Matter 

Riggs  V.  Cragg 

618 

ot 

36 

y.  Palmer 

637 

Republic  of  Peru  v.  Weguelin 

377 

V.  Riggs 

590 

Requa  v.  City  of  Rochester 

338 

Rima  y.  Rossie  Iron  Works 

276 

299 

Respublica  v.  Oswald 

82 

Ring  y.  Jamison 

292 

Revis  V.  Smith 

89 

Risley  v.  Phenix  Bank 

471 

Rex  V.  Annesby 

315 

Ritchie  v.  Putnam 

127 

V.  Billinghay 

315 

River  Rendering  Co.  v.  Behr 

434 

V  Clarke 

08 

Rix  y.  Rix 

169 

V.  Delaval 

241 

275 

Roach  V.  Quick 

199 

V.  DeManneville 

241 

Robalina  y.  Armstrong 

263 

V.  Earl  Ferrers 

96 

Robb  y.  Connolly 

105 

V.  Fleet 

82 

Robbins  v.  Chicago  City 

327 

c.  Greenhill 

98,99 

241 

y.  Shelby  Taxing  Dist. 

129 

V.  Hopkins 

263 

Roberts,  Ex  parte 

306 

V-  Isley 

273 

Roberts  v.  Camden, 

85 

V.  Johnson 

240 

y.  Pocock 

620 

(-'.  Lolley 

180 

181 

V.  Reilly                  105,  106 

107 

108 

V.  Luffe 

260 

V.  Smith 

329 

V.  Margram 

316 

Robertson  v.  Bennett 

82 

r.  Mead 

217 

y.  Broadbent 

609 

,612 

V.  Metcalf 

519 

V.  Parks 

394 

V.  Morris 

398 

V.  State 

152 

u.  Moseley 

263 

Robey  v  Smith 

129 

V.  Plant 

67 

Robins  v.  McClure 

195 

198 

V.  Richardson 

361 

Robinson,  Ex  parte 

101 

V.  Ripon 

315 

Robinson  v.  Bransby 

627 

V.  Robinson 

37 

y.  Commonwealth  Ins.  Co. 

24 

V.  Roddam 

96 

y.  Hamilton 

433 

y.  Scriever 

96 

V.  Holt 

487 

V.  Smith 

240 

V.  Lowater 

629 

y.  Soper 

263 

V.  Oceanic  Steam  Nav.  Co. 

129 

,  253 

y.  Spencer 

364 

V.  Ommanney 

596 

V.  St.  Martin's,  Exeter 

316 

V.  Robinson 

164 

V.  Vandercom 

67 

V.  Smith 

412 

V.  Wheeler 

519 

V.  State 

66 

y.  White 

82 

Roch  y.  Callen 

613 

Rexroth  v.  Coon 

451 

Rochfort  y.  Ely 

306 

Reynolds,  Ex  parte 

312 

Rocke  y.  Rocke 

654 

Reynold's,  In  re 

568 

Rodgers  v.  Nowill 

550 

Reynolds,  In  the  Goods  of 

599 

y.  Rodgers 

552 

Reynolds  v.  Braithwaite 

338 

Roger's  Case 

597 

V.  Phillips 

452 

Rogers  v.  Acaster 

193 

V.  United  States      50,  56, 

60,61 

,  117 

y.  Dill 

277 

,279 

Rice  V.  Boss 

527 

V.  Leyden 

3.34 

y.  Lumley 

177 

V.  McLean 

310 

xlviii 


TABLE  OF  CASES. 


PAGE 

Rogers  v.  Rogers  188,  217,  219 

r.  Walker  ^^^ 

Rollwagen  v.  HoUwagen  ^»£> 

Rolston  i .  Missouri  Fund  Com  rs  oSl 

Romaiue  r.  Chauncey  1^2 

Rome,  &c.  Ry.  Co.  v.  Chasteen  oo< 

Roose  V.  Perkins  ^:^° 

Roper's  Trusts,  In  re  ^^^ 
Rose  «.  Clark                           ifs  fii=  «^n 

V.  Rose  168,  615,  6o0 

Rosenblat,  Ex  pnrte  I'j'J 

Rosenwasser  v.  Berry  ol4 

Ross,  Matter  of  J* 

Ross,  y.  Chicago,  &c.  Ry.  ^^^ 

r.  Ross  loO.  204 

Rosseter  y.  Cahlmann  43 

Rothcrani  v.  Rotlieram  d&^ 

Rothermel  v.  Mcyerle  ^^^ 

Rountree  v.  State  4^^ 

Rouse's  Estate,  In  re  6o6 

Rowan  v.  Runnels  22,  23 

f.  State  J^^ 

Rowe  r.  Smith  20b 

Rowland,  Jix  parte  10^ 

Rowley  v.  Adams  664 
Roval  Baking  Powder  Co.  v.  Sherrill  546 

Royal  Cliarter,  The  339 
Royall,  Ex  parte                 76,  102,  103,  112 

Royer  Wheel  Co  v.  Fielding  564 

Rubber  Co.  v.  Goodyear  527 

Ruddiman  v.  Smith  341 

Rudolph,  In  re  436 

Rugg  r.  Rugg  S90 

Rule  of  Court,  Matter  of  59 

Rumsey  v.  Js.  Y.  &  N.  E.  Ry.  Co.  428 

Ruse  V.  Mut.  Ben.  Life  Ins.  Co.  212 

Russell  V-  Dickson  613,  656 

V.  Mayor  of  New  York  431 

V.  Smith  495 

V.  Stewart  347 

Ryall  r.  Kennedy  255 

Ryan  v.  Bindley  24 

Ryder,  Matter  of  235 

Ryder  v.  Hathaway  487 

V.  Holt  553 

r,  Hulse  198 

r.  Ryder  174 

V.  Worabwell  288 

Rynes  v.  Wellington  600 

Ryves  v.  Duke  of  Wellington  643 


S.  r.  E.  147 
S.,  falsely  called  B.,  v.  B.               159,  160 

Sackett  v.  Andrews  568 

Saco  V.  Woodsum  433 

Sadler  v.  Henlock  337 

Salisbury  v.  Met.  Ry.  Co.  397 
Saltpetre  Case                          430,  431,  559 

Saltus  V.  Everett  423 

Sanders  r.  Rodway  217 

r.  Soutter  666 

Sandford  v.  McLean  208 

Sands  v.  N.  Y.  Life  Ins.  Co.  139 

Sanford  v.  Messer  527 


PAOB 

215 

76 

74 

181 


Sanky  v.  Golding 

San  Mateo,  County  of,  v.  bo.  Pac. 

R.  R.  Co. 
Santa  Clara  County  v.  Same 
Santo  Teodoro  i'  Santo  Teodoro 
Saratoga  County  Bank  v.  Pruyn    214,  221 
Sargent  v.  JNletcalf 
Saunders  v.  Drake 

V.  Saunders 

Savage  v.  Foster 
Saville  v.  Jordine 
Savin  v.  Hoylake  Ry.  Co. 
Savings  Instit  v.  Makin 
Saxton  V.  Aultman 

V.  Hawksworth 

Saye  v.  Sele,  Barony  of 
Sayer  v.  Saver 

Sayles  v.  Chicago,  &c.  Ry.  Co. 
Scanlan,  In  re 
Searff  v.  Metcalf 

Schenectady,  &c.  Plank  Road  Co.  v. 
Thatcher  399,  406,  407 


424 

654 

186 

287 

86 

29 

35 

526 

836 

261 

611 

531 

246 

333 


Schettler  v.  Smith 
h^chlesinger  v.  Bedford 
Schloch  V.  Garrett 
Schlossberg  v.  Lahr 
Schluter  v.  Bowery  Bank 
Schneider  v.  Hosier 

V.  U.  S.  Life  Ins  Co. 

SchoUenberger,  Ex  parte 
Schooner  Exchange  v.  M'Faddon 
Schultz  V.  Schultz 
Schumacher  v   Schmidt 
Schuneman  v.  Palmer 
Schuyler  v.  Curtis 
Schuyler,  County  of,  v.  Thomas 
Schwab  V.  People 
Scott  V  Atty.-Gen'l 

!)  Bentley 

V  Depeyster 

V.  Raub 

V  Rowlands 

V.  Sebright 

V.  Shufeldt 

V.  Snyder,  &c.  Pro.  Co. 

V.  Stamford 

V.  Stansfield 

V.  State 

V.  Sweeney 

Scott  Mfg.  Co.  V.  Sayre 

Scottish  Pet.  Co.,  In  re 

Scrafford,  In  re 

Scribner  v.  Fisher 

Scrimshire  v.  Scrimshire 

Scruby  v.  Payne 

Scully  V.  Scully 

Seal  V.  Tichener 

Seaman  v.  Duryea 

('.  Netherclift 

Searcy  v.  Hunter 

Searing  r.  Searing 

Searle  v.  Lindsay 

V.  Ridley 

Seavy  v.  Dearborn 

Secord  v.  Secnr 

Secretary  of  State  v.  Kamachee 


615 
504 
348 
238 
644 
227 
212 
378 
123 
229 
597 
225 
493 
23 
40 
179 
310,  644 
412 
150 
549 
160 
145 
394 
503 
89 
149 
332 
508 
401 
66 
577 
158 
300 
348 
627 
282 
89 
291 
193 
331 
326 
487 
454 
124 


TABLE    OF   CASES. 


xlix 


PAGE 

PAGE 

Security  Co.  v.  Bryant 

620 

Simpson  v.  HoUiday 

518 

SeJley  v.  Arbonin 

96 

V.  Wilson 

530 

Seixo  I'.  Proverzende 

561 

Sims,  Goods  of 

588 

Selkrig  r.  Davis 

579 

Sims  V.  Everhardt 

286 

Sellon  V.  Watts 

620 

V.  Maryatt 

502 

Semple  v.  Bank  of  Brit.  Columbia 

382 

Singer  v.  McCormick 

327 

Seventy-eight  Bales  of  Cotton 

471 

Singer,  &c.  Mf'rs  v.  Wilson 

545 

Sewall  V.  Catlin 

85 

Sinklear  v.  Emert 

289 

Seward  r.  Vera  Cruz 

251 

252 

Skerritt  v.  Scallan 

334 

Sevvell's  Estate,  In  re 

617 

Skidmore  v.  Davies 

282 

Sewing  Mach.  Co.  v.  Frame 

515 

Skinner,  Ex  parte 

241 

Shackleton  v.  Shackleton 

169 

V.  Orde 

245,  246 

Shaffer  v.  Kugler 

216 

Skipp  V.  E.  C.  Ry.  Co. 

330 

Shaler  u.  Trowbridge 

211 

Skottowe  V.  Young 

259 

Shallcross  v.  Wright 

651 

Skrine  v.  Gordon 

288 

Shannon  v.  Shannon 

183 

Slator  V.  Brady 

291 

Sharland  r.  Middon 

645 

V.  Trimble 

291 

Sharp  V.  Cropsey 

234 

Slaughter-House  Cases 

130,  434 

Sharpe  v.  Crispin 

255 

Sleath  V.  Wilson 

342 

Shaw  ?;.  Atty.-Gen'l 

183 

265 

Sleeman  v.  Wilson 

273 

V.  Borrer 

629 

Slemmer's  Appeal 

527 

V.  Coffin 

302 

Sloan  V.  Kane 

145 

Shearman  v.  Robinson 

659 

Small  V.  Herkimer  Mfg.,  &c 

Co.          407 

Shears  v.  Solhinger 

568 

Smillie  r.  Quinn 

212 

Shedden  v.  Patrick 

259 

Smith,  In  re 

292 

Sheldon  v.  Kibbe 

561 

Smith,  Matter  of  Will  of 

585 

V.  Sheldon 

624 

Smith  V.  Alabama 

72 

Shelley  v.  Westbrooke 

242 

V.  Anderson 

396 

Shelthar  v.  Gregory 

217 

r.  Chadwick 

393 

Shelton  v.  Springett 

234 

V.  Combs 

457 

Shepheard  i'.  Beetham 

611 

V.  Cook 

85 

Shepherd  v.  Mackoul 

202 

V.  Denman 

348 

Sherman  v.  Ballou 

272 

V.  Dorr's  Adm. 

259 

V.  Garfield 

208 

V.  Dowell 

330 

V.  R.  &  S.  R.  R.  Co. 

331 

V.  Edwards 

613 

V.  Scott 

596 

V-  Ely 

512 

Sherrington's  Case 

651 

V.  Evans 

294 

Sherwood  v.  Alvis 

382 

V.  Everett 

647 

V.  Am.  Bible  Soc. 

369 

632 

('.  Helmer 

38,  39 

V.  Ray                              143 

141 

146 

V.  Johnson 

348 

Shideler  v.  State 

66 

0.  Keal 

20 

Shilson  V.  Atty.-Gen'l 

174 

265 

V.  King 

293 

Shipman  v.  Rollins 

631 

V.  Low 

291 

Shipp  V.  Miller's  Heirs 

22 

V.  Lyke 

226 

Shirk  V.  City  of  La  Fayette 

129 

V.  Masten 

226 

Shirley  v.  Bennett 

348 

V.  McClelland 

534 

Shook  ('.  Wood 

498 

V.  N.  Y.  &  H.  R.  R.  Co. 

334 

Shrewsbury  &  B.  Ry.  Co.  v.  N. 

W. 

V.  Pearce 

531 

R.  R.  Co. 

358 

V.  Reynolds 

227 

Shute  V.  Dorr 

246 

V.  Roche 

264 

Sibree  v.  Tripp 

566 

V.  Rogers 

348 

Sibthorp  V.  Moxom 

626 

V.  Sanborn 

487 

Sidebotham  v.  Watson 

622 

V.  Smith                  158, 

167,  178,  183, 

Sidney  v.  Sidney                       171 

172 

622 

225,  460 

Siebold,  ^.r  parte 

102 

V.  S-ate 

106 

Siegert  v.  Findlater 

546 

V.  Thompson 

3-27 

Sill  I'.  Worswick 

579 

('.  Whitman  Saddle  Co 

532 

Silsbury  v.  McCoon 

485 

V.  Zeigler 

566 

Silverman's  Case 

568 

Smith's  Estate 

618 

Simmons  v.  Bull 

259 

Smith  &  Griggs  Mfg.  Co.  v. 

Sprague   511 

V.  McElwain 

216 

Smyth  V.  Darlej' 

361 

V.  United  States 

64 

Snelling,  Matter  of  Will  of 

585 

Simon,  Matter  of 

97 

Snyder  v.  Snyder 

454 

Simonin  v.  Mallac 

147 

Soady  v.  TurnbuU 

645 

Simpson  v.  Davis 

540 

Society,  &c.  v.  New  Haven 

377 

V.  Grayson 

248 

Sohier  v.  Mass.  Gen.  HospitJ 

il                279 

1 


Soldanels  v.  Mo.  Pac.  Ry-  Co. 
Soliiiger  v.  Earle 
Solomons  r.  Koss 

. ,-.  United  States 

Soltaw  i:  l)e  Held 
Solly koff,  In  re 
Somerville  v.  Gray  &  Co. 
Sonierville  r.  Somerville 
Sonley  «^.  Clockmakers  Co. 
Sottouiayor  v.  De  Barros 


TABLE   OF   CASES. 


PAGE 

247 
566 
579 
508,  527 
79 
289 
832 
255 
3 
146,  147,  230 
285 
24 
626 
541 
493 
24 
327 
3,377 
325 
295 
406 
322 
564 
622 
499 
42,  50,  76 
625 


South  V.  Denniston 

V.  Williams 

Southern  v.  How 

Southey  v.  Sherwood 

South  Ottawa  v.  Perkms 

Spain  V.  Arnott 

Spain,  King  of,  v.  Hullett 

Spalding  v.  Rosa 

Sparman  v.  Keim 

Spear  v.  Crawford 

Spears  i;.  Snell 

Spelman  v.  Freedman 

Spencer  v.  Spencer 

Spiers  v.  Brown 

Spies  V.  Illinois 

Sninks  v.  Robins  ^  A.i-,  \ 

Split  Rock  Cable  Road  Co.,  Matter  of  427    

Spode  V.  Smith  '^'"'^  \ 

Spong  V.  Spong 
Sprague  v.  Waldo 
Spratt  V.  Spratt 
Sprayberry  v.  Atlanta 

V.  Merk 

Spring  Co.  v.  Knowlton 

Springfield  E.  &  T.  Co.  v.  Green 

Sprott  V.  United  States 

Sproule  V.  Bouch 

Spurway  v.  Glynn 

Squire  v.  Whipple 

Stack  V.  Stack 

Stackpoole  v.  Howell 

Stacpoole  v.  Queen 

Stag  I'.  Punter 

Stahlschmidt  v.  Lett 

Stainton  i'.  Carron  Co. 

Stamm  v.  Bostwick 

Standard  Folding  Bed  Co.  v.  Keeler 

Stanfield,  Matter  of 

Stanhope  v.  Stanhope 

Stanley  v.  Bernes 

V.  Nat.  Union  Bank 

V.  Potter 

Stanley  Rule,  &c.  Co.  v.  Bailey 
Stanton  v.  Willson 
Starbuck  v.  Starbuck 
State  V.  Adams 

V.  Addington 

V.  Ah  Chew 

V.  Armington 

V.  Bittick 

V.  Boswell 

V.  Burgoyne 

V.  Champeau 

V.  Clark 

V.  Clifford 


655 

630 

348 

127 

436 

202 

22 

369 

470 

618,  619 

656 

319 

259 

616 

478,'  479 

648 

648 

665 

136 

526 

657 

163 

64 

247 

622 

528 

239 

170 

150 

433 

434 

182 

154 

73 

434.  436 

66 

65 

474 


State  V.  Connoway 

. V.  Conway 

. V.  Cooper 

. 11.  Copeland 

V.  Dean 

. V.  Dent  ^  _, 

V  Dist.  Court  for  Ramsey  Co. 

,;.  Dist.  School  Board  of  Edger 

ton  ^ 

V.  F.  C.  Coal  &  Coke  Co. 

V.  Furbush 

V.  Gisch 

V.  Glenn 

V.  Goodwill 

V.  Gurney 

V.  Hairston 

V.  Hart 

V.  Holder 

V.  Honeveutt 

V.  HufEoVd 

V.  Jeffors 
V.  Jones 

.  V.  Kennedy 

■  V.  Kent 

-  V.  Laverack 

-  V.  Learn  ard 

-  V.  Long 
V.  Lymus 
V.  McCann 
V.  McDowell 
V.  McGinnis 
V.  Moon 
V.  Newsom 
V.  O'Neil 
V.  Owen 
V.  Pool 
V.  Read 
V.  Reinhardt 

•  V.  Rhodes 
-  V.  Richardson 

V.  Ross 

V.  Schweitzer 

V.  Sherburne 

V.  Shumpert 

I'.  Simpson 

V.  Snow 

V.  Stewart 

V.  Swepson 

V.  Ta-cha-na-tah 
V.  Taylor 
V.  Tutty 

V.  Vanderpool 

Walker 
Waterhouse 
West 
Weston 
Wheeler 
Whipple 
Whitford 
Wilforth 
Williams 
—      „.  Wister 
State  Bank  of  Ohio  v.  Knoop 


PAGE 

347 
473 
154 
65 
473 
129 
379 

56 
74 


State  of  Illinois  v.  Delafield 

St.  Clair  i'.  Cox 

Steam  Cutter  Co.  v.  Sheldon 


129,  436 
435 
60 
74 
433 
149 
66 
451 
65 
109 
66 
66 
149 
55 
427 
303 
129 
451 
473 
261 
129 
65 
58 
70 
65 
65 
433 
149 
229 
106 
149 
155 
65 
261 
62,66 
433 
109 
66 
72 
473 
149,  151 
112 
154 
65 
67 
473,  474 
433,  434 
66 
150 
58 
70 
67 
23,24 
377 
378,  379 
527 


TABLE  OF  CASES. 


PAGE 

PAGE 

Steam   Stone  Cutter  Co.  v.  Short- 

Strauder  v.  West  Virginia 

75 

sleeves 

527 

Street  v.  Licensed  Victuallers' 

Soc. 

81 

Stearns  v.  Herrick 

487 

Stretch  v.  Watkins 

235 

Steel  V.  So.  East.  Ry.  Co. 

337 

Striker  v.  Kelly 

36 

Steel  V.  Steel 

348 

Stringham  v.  Hilton 

329 

Steele,  In  the  Goods  of 

5y9 

Strong  V.  B'klyn  Cross  Town 

R.  R. 

Steele  u.  Thompson 

228 

Co. 

410 

Stegall  V.  Stegall's  Adm. 

2b  1 

Strubbee  v.  Railway 

4(54 

Stelz  V.  Shreck 

197 

Stuart  V.  Palmer 

68,69 

Stephens  v.  Cady 

495 

V.  Simpson 

321 

V.  Elwall 

346 

Stubbs  V.  Holywell  Ry.  Co. 

325 

Stephenson  v.  Dowson 

611 

V.  Leigh 

646 

V.  Little 

487 

Studd  V.  Cook 

606 

V.  Short 

875 

Studwell  V.  Shapter 

286 

V.  Stephenson 

299 

Stupp,  In  re 

112 

Stern  v.  Freeman 

293 

Sturges  V.  Crowninshield 

568 

V.  Meikleham 

286 

Stutz  V.  Armstrong 

508 

Stetson  V.  Stetson 

244 

Styles  V.  Guy 

663 

Stevens  v.  Benning 

502 

Suare  v.  Caffe 

214 

V.  Gladding 

495 

Sugden  v.  Alsbury 

618 

V.  Griffith 

471 

Suggate  V.  Suggate 

186 

V.  Keating 

519 

Suisse  V.  Lowther 

613 

V.  Stevens 

308 

Summers  v.  Reynolds 

662 

V.  Woodward 

341 

Sunderlin  v.  Bradstreet 

88 

Steward  v.  Young 

94 

Sussex  Peerage  Case 

146 

Stewart  v.  Ball 

482 

Sutro  V.  M.  Ry.  Co. 

429 

V.  Brooklyn  R.  R.  Co. 

336 

Suydam  v.  Williamson 

24 

V.  Lispenard 

584 

Swainson  v.  N.  E.  Ry.  Co. 

346 

St.  George  &  St.  Margaret,  Parishes 

Swans,  Case  of 

449 

of 

190 

Sweeney  i'.  Warren 

652 

Stickland  v.  Stickland 

188 

Sweet  V.  Benning 

491 

Stickney  i\  Sewell 

660 

V.  Cater 

501 

Stiles  V.  Cardiff  Steam  Nav.  Co.    343 

,452 

Swift  V.  Swift 

217 

,243 

V.  Nokes 

88 

I'.  Tyson 

24 

St.  John  V.  St.  John 

190 

V.  Wen  man 

178 

St.  John's  Coll.  V.  Todington 

388 

Swinfen  v.  Swinfen 

662 

St.  Louis  V.  Bircher 

435 

Swires  v.  Parsons 

348 

Stockdale  i'.  Hansard 

90 

Sykes  v.  Dixon 

344 

V.  Onwhyn 

493 

V.  Halstead 

203 

Stocken  v.  Patrick 

202 

V.  Sykes 

178 

550 

Stogdon  V.  Lee                                220 

222 

Symes  v.  Vernon 

654 

Stokes  V.  Amerman 

211 

Symington  v.  Symington 

176 

Stoltz  V.  Doering 

152 

Symonds  v.  Jones 

547 

Stone  V.  Damon 

308 

Symons'  Case 

300 

V.  Mayor  of  New  York 

431 

Synge  v.  Synge 

626 

V.  People 

65 

V.  Scripture 

644 

V.  Varney 

92 

Taf  t  V.  Pike 

295 

Stoner  v.  Todd 

517 

V.  Sergeant 

295 

Stones  V.  Cooke 

172 

Tague  V.  Haj-ward 

319 

Storey  v.  Ashton 

342 

Talbot  V.  Chamberlain 

311 

V.  Challands 

86 

('.  Hudson 

426 

427 

Storrs  V.  City  of  Utica                    338 

.367 

V.  Lewis 

476 

Story  I'.  Holcombe 

504 

V.  Shrewsbury 

246, 

273 

V.  Johnson 

291 

Talmage  v.  Chapel 

647 

V.  N.  Y.  El.  R.  R.  Co. 

428 

Tarble's  Case 

101 

296 

V.  Story 

168 

Tarpley  v.  Blakey 

9.J 

Stoudt  V.  Shepherd 

249 

Tarrant  v.  Webb 

330 

Stourton  v.  Stourton 

245 

Tarry  v.  Ashton 

339 

Stout  V.  Stout 

656 

Tate  V.  Donovan 

227 

Stoutenburgh  v.  Hennick 

129 

Tatem,  Ex  parte 

101 

Stovall  V.  Johnson 

235 

Tatham  v.  Drummond 

613 

Stowe  V.  Thomas 

504 

Taunton  v.  Morris 

194 

St.  Paul  V.  St.  Paul 

170 

Taylor,  Ex  parte 

205 

Stracey,  In  the  Goods  of 

597 

Taylor,  Tyi  re 

176, 

243 

Stranbenzee  v.  Monck 

588 

Taylor,  Matter  of 

310 

m 


TABLE    OF    CASES. 


Taylor  v.  Chichester  &  M.  Ry.  Co 

1-.  Church 

V.  Crowlaiul  G.  &  C.  Co. 

V.  Evansville,  &c.  Ky.  Co. 

V.  Gillies 

V.  Meads 

t;.  Miami  Co. 

V.  Mitchell 

•  i".  Pluiiier 


PAGE 

358 

93 

382 

333 

546 
222,  22-4 
409 
597 
457 


V.  Porter 

r.  Taiiitor 

i;.  Taj- lor 

V.  Ypsilanti 

Taylor's  Estate,  In  re 

Teal  V.  Woodworth 

Telegraph  Co.  v.  Brett 

Temple  v.  Hawley 

Tennent  v.  City  of  Glasgow  Bank 

Terrell  v.  Matthews 

Terrible,  In  the  Goods  of 

Terry  ;•. Hutchinson 

Terwilliger  i'.  Wands 

Teter  c  Teter 

Textor  v.  B.  &  0.  R.  R.  Co. 

Thatcher's  Trusts,  Re 

Thelwall  v.  Yelverton 

Thomas  v.  Foxwell 

I'.  PuUis 

v.  Queen 

V.  Roberts 

V.  Thomas 

Thompson,  Ex  parte 
Thompson  v.  Boisselier 

V.  James 

V.  Ketcham 

r.  Stanhope 

V.  State 

I'.  Thomas 

{'.  Thompson 

V.  Watts 

V-  Whitman 

Thomson  v.  Thomson 

V.  Univ.  of  London 

Thorn  v.  Garner 
Thornton  v.  Grange 
Thorp  V.  Bateman 

V.  Thorp 

Thorpe  V.  N.  Y.  Cent.  Ry.  Co. 
Tiiorpe  Bros.  &  Co.  v.  Fowler 
Thrupp  V.  CoUett 
Tliurber  v.  Townsend 
Thurlow  V.  Gilmore 
V.  Massachusetts 


43,  429,  4::;0 

108 

611,  622,  641 

24 


627 
210 
509 
298 
395 
663 
598 
249 
86 
154 
435 
615 
200 
518 
290 
3 
243 
291 
101 
514 
513 
285 
490 
65 
264 
174,  178,  183 
642 
184 
273 
388 
656 
348 
348 
159,  178 
336 
424 
031 
196 
293 
126,  433 


Thynne,  Lady  i\  Earl  of  Glengall   G24, 

626 
Tibbe  &  Son  Mfg.  Co.  v.  Heineken  529 
Tifft  V.  Porter  609,  611 

V.  Tifft  238 

Tilden  v.  Green  6-36 

Tillison  V.  Tillison  167 

Timerson  v.  Timerson  168 

Tinkham  v.  Tapscott  38 

Tinney  >'.  Stebbins  460 

Tioga  County  v.  So.  Creek  Town- 
ship 261 
Tioga  R.  R.  Co.  v.  B.  &  C.  R.  R.  Co.      23 


Tittman  v.  Thornton 

Tobey  Furniture  Co.  v.  Colby 

Todd  V.  Hawkins 

V.  Rough 

V.  Todd 

V.  Weber 

Toledo  Tie,  etc.  Co.  v.  Thomas 
Tombs  V.  Roch 
Tomlinson  v.  Bury 
Tompkins  v.  Halleck 

V.  Tompkins'  Ex'rs 

Tompson  v.  Dashwood 
Tom  Tong,  Ex  parte 
Tonnele  v.  Hall 
Toogood  V.  Spyring 
Toole  V.  Young 
Topliff  V.  Topliff 
Toplis  V.  Baker 
Torrens  v.  Campbell 

Tovey  v.  Lindsay 

Tower  v.  Tower 
Towle  V.  Dresser 

Town  of  Guilford  v.  Supervisors  of 
Chenango  County 

Towne  v.  Wiley 

Townsend  v.  Barber 

V.  Brown 

V.  Leonard 

V.  Todd 

V.  Townsend 

Trageser  v.  Gray 

Trelawney  v.  Coleman 

Tremain  v.  Cohoes  Co. 

Triggs  i\  Lester 

Trimmer  v.  Hiscock 

Trimnell,  In  the  Goods  of 

Tripp  V.  Riley 

Trombley  v.  Humphrey 

Troutman's  Case 

Troy  Iron  &  N.  Factory  v.  Corning 

Trustees  of  Brit.  Museum  v.  \Vhite 

Tuchband  v.  Chic.  &  Alton  Ry.  Co. 

Tucker  v.  Gilman 

V.  Magee 

V.  Moreland 

Tuckey  v.  Henderson 

Tufnell  V.  Constable 

TuUett  V.  Armstrong 

TuUis  V.  Fleming 

Tunis  V.  Hestonville,  &c.  Ry.  Co. 

Turner  v.  Gaither 

V.  Gibb 

V.  Mason 

V.  Robinson 

V.  Rookes 

V.  Thompson 

V.  Winter 

Turpin  v.  Pub.  Adm. 

Turrill  v.  Mich.  &c.  R.  R.  Co, 

Tuson  V.  Evans 

Tuttle  I'.  Gaylord 

Twiman,  Re 

Twitchell  v.  Commonwealth 

Twycross  i\  Drej'fus 

Tynte  v.  The  Queen 

Tyson  v.  Simpson 


PAGE 

647 

533 
88 
83 
170 
264 
382 
653 
609 
489 
235 

90 
103 
588 

88 
504 
523 
626 
247 
180 
452 
291 

425 

302 

663 

35 

576 

23 

188 

129,  437 

231 

338 

31 

85 

590 

460 

429 

108 

529 

633 

379 

407 

321 

294 

613 

626 

222 

108 

363 

292 

628 

327 

491,  494 

202 

181 

581 

152 

525 

81 
540 
113 

60 
380 

78 
481 


TABLE  OF  CASES. 


liii 


PAGE 

Chlniann  v.  Uhlmann 

188 

Ulery  r.  Jones 

449 

Ulster  B'ldg  Co.,  In  re 

457 

Underbill  v.  Dennis 

274, 

276 

V.  Taylor 

93 

Union  Cent.  Life  Ins.  Co.  v. 

Thomas 

382 

Union  Edge  Setter  Co.  v.  Keith 

515 

Union  Ferry  Co.,  Matter  of 

42(3 

United   Nickel   Co.  v.  Cal. 

Electric 

Works 

515 

United  States,  Petition  of 

429 

United  States  v.  Arredondo 

37 

V.  Bags  of  Coffee 

650 

V.  Bainbridge 

319 

V.  Bell  Telephone  Co. 

636 

V.  Bennett 

57 

I'   Bott 

118 

V.  Brig  Malek  Adhel 

556 

V.  Brigantine  Mars 

556 

V.  Britton 

57 

V.  Caldwell 

112 

V.  Chase 

57 

V.  Comerford 

57 

V.  Coolidge 

64 

V.  Crook 

312 

V.  Cruiksbank 

60,75 

130 

V.  Davis 

104 

V.  De  Walt 

60 

V.  Doss 

101 

V.  Foote 

118 

V.  Fox 

23 

v.  Gaylord 

57 

V.  Gibert 

64 

V.  Hanover 

57 

V.  Harmison 

67 

r.  Haskell 

64 

V.  Kagama 

311 

312 

V.  Kelly 

118 

V.  Lawrence 

70 

112 

V.  Loftis 

57 

V  Martin 

57 

V.  McClay 

101 

V.  McRae 

377 

V.  Morris 

57 

V.  O'Keefe 

470 

V.  Padelford 

470 

V.  Perez 

64,65 

V.  Quigley 

471 

V.  R.  R.  Bridge  Co 

429 

V.  Rauscber      104,  110 

,  111,  112 

,  116 

V.  Rector 

100 

a.  Reese 

131 

V.  Scholfield 

321 

I'.  Shares  of  Stock 

1.38 

V.  Slioemaker 

64 

V.  Steffens 

544 

,  553 

V.  Terry 

206 

V.  Thomas 

57 

V.  Titus 

347 

V.  Wigbtman 

67 

V.  Wonson 

22 

United  States  of  America  r. 

Priolean 

3, 
377 

V.  Wagner 

3 

,  377 

United  States  Rifle,  &c.  Co 

V.  Whit- 

ney  Arms  Co. 

611 

PAGE 

United  Telephone  Co.  v.  Harrison  517 

V.  London,  &c.  Co.  534 

V.  Sharpies  531 

Unwin  v.  Clarke  7 

V.  Heath  632 

Upmann  i'.  Elkan  552 

V  Forester  652 

Urban  v.  Grimes  291 

Usparicha  v.  Noble  138 

Utterton  v.  Tewsh  182 


Vachell  v.  Roberts  617 

Vadala  v.  Lawes  184 

Vail  V.  Hamilton  364 

V.  Reynolds  394 

Valentine,  Matter  of  279 

Valentini  v.  Canali  293 
Vallean  v.  Vallean                            160,  171 

Van  Aernam  v.  Van  Aernam  173 

Van  Alen  v.  Am.  Nat.  Bank  457 

Van  Arnam  v.  Ayres  225 

Van  Arsdale  v.  Laverty  57 

Vanartsdalen  v.  Vanartsdalen  244 

Van  Aukin  v.  Westfall  84 
Van  Benthuysen  r.  Van  Benthuysen     167 

Van  Bokkelen  v.  Taylor  566 

Van  Cleaf  v.  Buws  177 
Van  Denburgh  v.  Village  of  Green- 
bush                                                  40,  41 

Vanderheyden  v.  Mallory  199 

Vanderpoel  i'.  Gorman  384 

Vanderzee  v.  Slingerland  614 

Van  Doren  r.  Olden  618 

Van  Dorn  v.  Young  319 
Van  Dresser  v.  Oregon  Ry.  &  Nav. 

Co.  379 

Van  Duzor  v.  Allen  424 

Vane  v.  Vane  306 

Vane's,  Lord,  Case  229 
Van  Epps  v.  Van  Deusen               194,  272 

Van  Fossen  v.  State  182 

Van  Home,  Matter  of  282 

Van  Patten  v.  Burr  564 

Van  Schoyck  v.  Backus  348 

Vansittart  u.  Vansittart  217 

Van  Tassel  v.  Capron  85 
Van  Tassell  i\  Manliattan  Hospital       -343 

Van  Tuyl  v.  Van  Tuyl  154 
Van  Vaikenburgh  v.  Lenox  Fire  Ins. 

Co.  566 

Van  Valkinburgh  v.  Watson  235 
Van  Voorhis  v.  Brintnall                 159,  178 

Van  Winkle  v.  Constantine  208 

Van  Wyck  v.  Horowitz  549 

Vasse  1-.  Smith  302 

Vaughan  v.  Vanderstegen  287 

Vaughn  v.  Hopson  424 

Veazie  v.  Penobscot  R.  R.  Co.  327 

Venables  v.  Smith  842 

Venice,  Town  of  v.  Murdock  25 

Venus,  The  137 

Vernon  v.  Hallam  549 

V.  Vernon's  Heirs  261 

Vicars  v.  Wilcocks  345 

Vickers  Sons  &  Co.  v.  Siddell  517 


liv 


TABLE  OF  CASES. 


Vidal  V.  Girard's  Ex'rs. 

Viiller  I'.  Collyer  . 

Village  of  Carthage  v.  Frederick 

Vincent  v.  Vincent 

Virginia,  Ax  i>urte  "o,  1U2 

Virginia  Coupon  Cases 

Virginia  v.  Rives 

Volans  V.  Owen 

Von  Ileyden  v.  Neustadt 

Voorliies  v.  Voorhies 


PAGE 

389 
2U 
366 
155 
,  130 
381 
130 
227 
533 
291 


Wabasli,  &c.  Ry.  Co.  v.  Ham  405 

Wa.ldell  V.  Waddell  186 

Wade  c.  Kalbfleiscli  650 
Wadiianis  v.  Am.  Missionary  See.  224,  225 

Wadswortli  v.  Queen  of  Spain  3 

V,  Thomas  36 

V.  Wadsworth  133 

Wadswortli   and    Queen   of    Spain, 

iMatter  of  379 
Wager  v.  Wager                             604,  666 

Wahll,  In  re  57 

Wainfurd  v.  Heyl  219 

Waistel  v.  Holman  81 

Wait  r.  Maxwell  307 

V.  Wait  177 

Waite,  Matter  of  579 

Waitlmian  v.  Wakefield  201 

V.  Weaver  92 

Wakefield  v.  Mackay  144 

Wakeman  v.  Ualley  394 

V.  Grover  563 

Walcot  V.  Walker  493 

Walford  v.  de  Pienne  210 

Walker  v.  Brogden  86 

V.  Davis  302 

V.  Sauvinet  50 

V.  So.  East.  R.  R.  Co.  340 

V.  Walker  590,  597 

V  Walker  661 

Walker's  Case  192 

AValker's  Estate  348 

Wall  V.  Wall    ■  656 

Wallace  v.  Bennett  82 

V.  Lincoln  Sav.  Bank  391 

V.  Pomfret  625 

Waller  v.  So.  East.  Ry.  Co.  3:^ 

Walley  v  Holt  302 

Walraven  v.  Jones  348 

Wnl.'ih,  Re  246 

Walsh  V.  Powers  295 

r.  Trustees  of  N.  Y.  &  B.  Bridge    343 

Walsham  v.  Stainton  650 

Walston  V.  Nevin  75 

Walter  v.  Everard  288 

w.  Selfe  79 

Waltcrmire  v.  Waltermire  189 

Walton  V.  Green  231 

Wando,  The  471 

Wanstall  v.  Pooley  341 

Warhurton  r.  G.  W.  R.  R.  Co.  3.34 

Ward  t'.  Dean  86 

V.  Gcn'l  Omnibus  Co.  841 

Ward  r.  Hobbs  453 
V.  Maryland  129 


PAGE 

Ward  V.  People  422 

V.  Steamboat  "  Little  Red  "  293 

V.  Ward  187 

Warden  v.  McConnell  227 

Warden  v.  Ashburner  619 

Waring  v.  Jackson  24 

Warne  v.  Routledge  501 

Warner  v.  Durant  613 

V.  Miller  225 

Warren  v.  Paul  58 

V.  Warren  225 

Warrender  v.  Warrender  2.30 

Warten  v.  Warten  179 

Washaw  v.  Ginible  243 
Washburn,  Matter  of                      104,  110 

Washburn  v.  Gould  508 

Washington  v-  Washington  150 
Washington  Park,  Matter  of  36,  38 
Washington  Street  Asylum,  Matter 

of  32 

Wason  V.  Walter  90 

Waterbury  v.  Newton  433 

Waterman  v.  Mackenzie  527 

—  -  V.  Shipman  535 

Waters,  In  re  655 
Watervliet  Turnpike  Co.  v.  McKean      38 

Watkins,  Ex  parte  99 

Watkins  v.  Carlton  261 

Watkins  Nat.  Bank  v.  Sands  564 

Watling  V.  Oastler  320 

Watson,  In  re  436 

Watson  V.  Arundell  688 

11.  Moore  93 

Watts  V.  Eraser  93 

V.  Owens  261 

Weall  V.  Rice  623,  626 

Webb  V.  Powers  504 

V.  Richmond  &  D.  Ry.  Co.  333 

Webber  v.  Piper  329 

V.  Vincent  88 

Webster  v  Reid  50 

Weed  V.  Burt  328 

V.  Cantwell  604 

V.  Panama  R.  R.  Co.  336 

V.  Weed  604 

Weeks  v.  Leigbton  294,  295 

Weems  v.  Mathieson  329 

Wegmann  v.  Corcoran  519 

Weinstock  v.  Levison  279 

Weismer  v.  Village  of  Douglas  43 

Welch,  The  John  M.  129 

Welch  V.  Bunce  290 

Weld  V.  Walker  454 
Weldon  v.  Dicks                              498,  502 

Weller  v.  Weller  171 

Wellesley  v.  Beaufort  242 

Welling  V.  Crane  515 

Wells  V.  Fletcher  231 

V.  Perkins  348 

Welsh  V.  The  No  Cambria  253,  254 

V.  The  State  129,  437 

Wemyss  v.  Hopkins  66,  67 

Wendell,  Matter  of  307 

Wenlock  v.  River  Dee  Co.  360 

Wenman  v.  Ash  81 

Wennhak  v.  Morgan  81 


TABLE  OF  CASES. 


Iv 


Wentworth  v.  Buhler 

PAGE 

246 

Wilcox  V.  Wilcox 

PAGE 

242,  629 

c.  Day 

475 

Wild  V.  Waygood 

335 

West  V.  Shuttleworth 

634 

Wilday  v.  Sandys 

617 

V.  Smither 

280 

Wilde  V.  Jenkins 

350 

Western  Cement  Co.  v.  Jones 

310 

V.  Smith 

528 

Western    Counties    Co.    v.    Lawes 

Wilder  r.  Adams 

528 

Chem.  Co. 

94 

Wildman  v.  Wildman 

196 

Western  Elec.  Mfg.  Co.  v.  Odell 

513 

Wiles  V.  Peck 

209 

Westervelt  r.  Gregg 

196 

Wilhelm  v.  Hardman 

295 

Weston's  Case 

300 

Wilkins  v.  EUett 

644 

Westwick  u.  Theodor 

317 

'••  Hogg 

663 

Wetherbee  v.  Green. 

484 

Wilkinson  v.  Adam 

263 

Wetlierell  v.  Keith 

511 

V.  Gibson 

178 

Wetmore  v.  Carryl 

593 

Wilkinson's  Case 

395 

V.  Kissam 

298 

Wilks  V.  Groom 

662 

V.  Pariier 

376 

685 

Willcocks,  Ex  parte 

364 

r.  Zabriskie 

460 

Willets  V.  Green 

327 

Wlialebone,  A  Lot  of 

479 

Williams  v.  Arkle 

638 

Wharton  v.  Mackenzie 

•288 

r.  Armroyd 

562 

Wheaton  v   Peters 

68 

501 

V.  Commonwealth 

65 

Wheeler  v.  Hatheway 

656 

V.  Fowler 

202 

V.  Howell 

628 

V.  Hagood 

15 

V.  Roberts 

40 

l:  Hill 

86 

Whicker  v.  Hume                    587, 

634 

643 

V.  Holdredge 

85 

Whispell  V.  Whispell               169, 

185 

189 

V.  Hughes 

610 

Wiiitaker,  In  re 

309 

r.  Hutchinson 

234 

Whitaker  v.  Wright 

665 

V.  Kent 

199 

Whitcomb  v.  Joslyn 

294 

V.  McClanahan 

484 

White,  Ex  parte 

109 

V.  McKay 

391 

White  V.  Branch 

294 

V.  Mo.  K.  &  T.  R.  R.  Co. 

377 

V.  Cotzhausen 

564 

r.  N.  Y.  Cent.  R.  R.  Co. 

427 

V.  Crisp 

441 

V.  Planter's  Ins.  Co. 

369 

V.  Ditson 

664 

r.  Pullman  Car  Co. 

337 

i:  Greenhow 

381 

V   Storrs 

254 

i\  Howard 

633 

V.  Thorn 

223 

V.  Lee 

528 

V.  Tyley 

593 

V.  Mann 

235 

V.  Weber 

109 

V.  NichoUs 

88 

V.  Western  Union  Tel.  Co. 

409 

V.  Ross 

225 

V.  Williams       164,  16-5,  172 

18.3,  187 

V.  Wager 

210 

188,  455, 

648,  662 

V.  Wlike 

187 

Williamson  v.  Codrington 

264 

i\  Wood 

221 

Willimantic    Thread   Co.   v.    Clark 

Whitehead  r.  N.  Y.  Life  Ins.  Co 

211 

Thread  Co. 

540 

Whiteley  v.  Pepper 

341 

Willis  V.  Bernard 

231 

Whitfield  V.  Clemment 

625 

V.  Oregon  Ry.  &  Nav.  Co. 

332 

V.  So.  East.  Ry.  Co. 

368 

V.  Sharp 

6.59 

Whitmarsh  v.  Hall 

295 

V.  Willis 

309 

Whitmore  v.  Whitcomb 

319 

Willison  V.  Patteson 

138 

Whitney  v.  Dutch 

293 

Willox  r.  Rhodes 

610 

Whitney  Arms  Co.  v.  Barlow 

358 

Willson  V.  Smyth 

204 

Whittaker,  In  re 

657 

Wllmerding  v.  McKesson 

663 

Whittemore  r.  Cutler 

508 

.531 

Wilmington  v.  Macks 

435 

Whittingham  r.  Idesoa 

450 

Wilmington  R.  R.  Co.  v.  King 

1.S8 

V.  Mundv 

293 

Wilson,  Ex  parte 

579 

Whitwell  V.  Wells 

441 

Wilson  V.  Babb 

261 

Widgery  v.  Tepper 

193 

V.  Brownsmith 

609 

Widmer  v.  Greene 

490 

V.  Ford 

202 

Wigg  V.  NichoU 

635 

V.  Garrard 

238 

V.  Wigg 

629 

V.  Goit 

87 

Wiggett  V.  Fox 

3.S0 

V.  Holt 

159 

Wightwick  V.  Lord 

617 

,618 

V.  Kearse 

294 

Wigmore  '•.  Jav 

330 

,332 

V.  Lawrence 

212 

Wilby  V.  Elstoii 

86 

V   Maddison 

656 

Wilcocks  ('.  Carter 

644 

V.  Merry 

330,  332 

Wilcox  V.  Xolze 

107 

V.  Mnrley 

625 

V.  Roath 

293 

V.  Nasoa 

487 

Ivi 


TABLE   OF   CASES. 


613 

531 

346 

527 

170,  217 

6(33 

628,  629 

210 

348 

113 

3 

522 

168 

64,  65 

165 

551 

426 

92 

325 

523 

434 

103 

450,  482 

277 

515 

475 

597 

V.  Wood  169,  171,  244 

Woodall,  hi  re  112 

Wooden  Ware  Co.  v.  United  States     486 
Woodley  v.  Met.  Ry.  Co.  330 

Woodman  v.  Chapman  199 

V.  Met.  Ry.  Co.  339 

Woodrow  V.  Coleman  322 

Woodruff  V.  Erie  Ry.  Co.  358 

V.  Logan  319 

Woods  V.  Pangburn  81 

V.  Wiman  88,  90 

Woodward  v.  Wasliburn  344 

Wooley  ?'.  Campbell  487 

Woolnoth  V.  Meadows  84 

Woolsey  v.  Judd  491 

Worraker  v.  Fryer  665 

Worsley  v.  Worsley  177 

Worth  V.  Northam  484 

Wotherspoon  v.  Currie  543 

Wragg,  E.r  parte  307 

Wrav  V.  Wray  162 

Wren  v.  Weild  93,  94 

Wright  V.  Brown  320 

V.  City  Council  of  Augusta  366 

V.  C.  &  N.  W.  R.  R.  Co.  434 

V.  Hughes,  Assignee  359 


Wilson  V.  O'Leary 

V.  Simpson 

V.  Stewart 

V.  StoUey 

V.  Wilson 

Wilson's  Appeal 

Wiltsie  V.  Shaw 

Winans  v-  Peebles 

Windland  i'.  Deeds 

Windsor,  In  re 

Windsor  &  Annap.  Ry.  v.  Queen 

Wing  V.  Anthony 

Winscom  v.  Winscom 

Winsor  v.  The  Queen 

Winton  v.  Winton 

Wirtz  V.  Eagle  Bottling  Co. 

Withers  ;;.  IJuckley 

Woloott  V.  Hall 

Wolfe  V.  Howes 

WoUensak  i*.  Reiher 

Wong  Yung  Quy,  In  re 

Wood,  1)1  re 

Wood  r.  Ash 

V.  Mather 

V.  Packer 

V.  Pierson 

V.  Roane 


PAGE 

Wright  V.  Leonard  287 

V.  Lond.  &  N.  W.  R.  R.  Co.  349 

V.  Miller  299 

V.  Paige  84 

V.  Saddler  135 

V.  Sanderson  591 

V.  Tallis  493,  494,  503 

V.  Tuckett  618 

V.  Wright  154 

Wright's  Trusts,  In  re  258,  259 

Wuesthoff  1-.  Ger.  Life  Ins.  Co.             273 

Wurts  V.  Hoagland  75 

Wyatt  V.  Barnard  491,  497,  504 

Wydale,  The  253 

Wyllie  V.  Ellice  272 

Wynch  r.  Wynch  656 

Wyndham  v.  Ennismore  244 

Wynehamer  v.  The  People  432,  440 

Wynkoop  v.  Wynkoop  454 


Yale  V.  Dederer  206,  209,  221 
Yale  Lock  Mfg.  Co.  v.  Berkshire  Nat. 

iJank  539 

V.  Greenleaf  514,  522 

V.  Sargent  523,  533,  540 

Yarbrough,  Ex  parte  75,  102 

Yarrow  v.  Yarrow  163 

Yearwood's  Trusts,  In  re  174 


Yeates  v.  Reed 
Yeatman  v.  Yeatman 
Yelverton  v.  Yelverton 
Yerger,  Ex  parte 
Yglesias  v.  Yglesias 
Yick  Wo  V.  Hopkins 
Yoder  v.  Mills 
Young  V.  Fernie 

V.  Grau 

V.  Macrae 

V.  Miller 

V.  Shickle,  &c.  Co. 

V.  United  States 

V.  Wallingford 

Younger  v.  Judah 
Yovatt  V.  Winyard 


93 

187,  665 

230 

99 

177 

438 

508 

516 

572 

94 

88 

334 

470 

650 

130 

493 


Zeigler  v.  Danbury  &  N.  R.  R.  Co.  833 

Zeta,  The  479 

Zimmer  v.  Settle  217 

Zoebisch  v.  Von  Minden  566 

Zorntlein  v.  Bram  197 

Zouch  V.  Parsons  290 


TABLE    OF    STATUTES. 


NEW  YORK   STATUTES. 


CODE    OF    CIVIL    PROCEDURE. 


Sect. 

Page 

Sect. 

432 

379 

2020,  2022 

450 

198,  205, 

213 

2026 

535 

91 

2028,  2041 

648,  550,  551 

116 

2043 

707 

379 

2045-2047 

828,  831 

282 

2048,  2050 

1012 

167 

2054,  2055 

1273 

221 

2065 

1651-1659 

192 

2149-2187 

1742 

143 

2320-2344 

1744 

142 

2330 

1745 

160 

2334 

1746,  1747 

144 

2335 

1746-1750 

• 

168 

2337 

1750 

144 

2339-2344 

1752 

148 

2419 

1756 

162 

2419-2431 

1757 

167 

2420 

1758 

171 

2421-2431 

1759,  1760 

177 

2431 

1761 

178 

179 

2472 

1762 

187 

188 

2611 

1765 

189 

2624 

1769 

165 

166 

2627 

1770 

167 

2647-2653 

1771 

175 

176 

2665-2669 

1780 

129 

379 

2668 

1781 

396 

397 

2670-2683 

1982 

397 

2685-2693 

1785-1796 

403 

2694-2702 

1797-1803 

390 

2700,  2701 

1804 

390 

397 

2706-2748 

1810 

402 

2718,  2719 

1843-1860 

654 

2721 

1847 

654 

2733 

1866 

604 

2746 

1899 

9 

2747 

1902-1905 

251 

2749-2801 

1904 

78 

2821-2850 

1977-1981 

132 

2838-2841 

1991 

95 

2842-2850 

2008-2066 

95 

2851-2860 

2015,  2016 

95 

3082-3115 

2015-2066 

99 

3390-3397 

Page 
96 
97 
96 
97,99 
97 
99 
99 
96 
566 

306,  310 
306 
307 

307,  309 
309 
309 
402 
400 
400 
402 
400 
276 
587 
604 
602 
602 
558 
558 
646 
666 
668 
668 
666 
649 
654 
641 

254,  658 
558,  658 
654 
276 
276 
282 
274 
477 
376 


Iviii 


TABLE   OF    STATUTES. 


CODE  OF  CRIMINAL  PROCEDURE. 


Sect. 
340,  341 

392 
814-826 

827-834 
838 


Page 

Sect. 

66 

899 

232 

899-913 

78 

914 

109 

921 

262 

Page 

205 
235 
256 
205 


PENAL  CODE. 


18 

24 

206-210 

279 

281 

282 

284-286 

287-293 

298-302 

302 

317 


308 

364-371 

206 

383 

79 

441 

303 

640 

144 

655-669 

250,  301 

700,  701 

250 

708-710 

287,  301 

713 

148,  149 

728 

145,  263 

887 

118 

554 
437 
481 
481 
453 
303 

78 
303 

40 
301 


NEW  YORK  EEVISED   STATUTE 


Part  II.,  Chap.  I.,  Tit.  II.  Art.  3 

(Powers) 
Part  II.,  Chap.  VI.,  Tit.  VI. 

Revised  Statutes,  695,  §  1 
718,  719 


721,  §  19 
723,  §  15 
723,  §  16 
726,  §  39 
728,  §  55 

753,  §  14 

754,  §  19 
754,  §  22 
754,  §§  23-26 

773,  §  1 

774,  §  5 
57,  §1 
57,  §3 
57,  §4 

60,  §  21  (3d  ed.) 
60,  §  30  (6th  ed. 
63,  §  40 


Page 

468 
558 
34 
271 
132 
133 
466 
236 
133 
265 
265 
134 
641 
630 
236 
297 
372 
133 
224 
I  602 
590 


64,  §  42  592,  593 


Page 

2  Revised  Statutes,  64,  §§  43,  44  5»5 

2        "             "          64,  65,  §§  45-48  596 

65,  §  49  596 

66,  §  52  614 

67,  §  53  598 
75,  §  32  297 

97,  §§  76-78  641 

98,  §  79  198 
139,  §5j  5,  7  161 
139,  §  6  148,  160 
148,  H9  242 

153,  §§  3,  20  272 

154,  §2  319 
447,  §  1  651 
449.  §  17  645 


467,  §§  66-89  400,  402 
701, '§  20  78 


Rev.  Stat.,  8th  ed.  pp.  2425,  2426  136 

"      8th  ed.  pp.  2601  298 

"      8th  ed.  pp.  2602  200 

"      8th  ed.  pp.  2620-2623  237 


TABLE    OF   STATUTES. 


lix 


LAWS   OF  NEW  YORK. 


Colonial  Laws. 
1771,  Feb.  16,  Ch.  1484 
1773,  Mch.  8,    "    1609 


Laws 

OF 

1787, 

Ch.  39 

1788, 

"  46 

1799, 

"  57 

IbOl, 

"  65 

181.3, 

"  57 

1813, 

"  60 

1  Rev 

Laws,  1813, 

62 

2  " 

(<    « 

368,  369 

1818, 

Ch. 277 

18.39, 

"  350 

1840, 

"  80 

1840, 

"  318 

1841, 

"  261 

1845, 

"  11 

184.5, 

"  115 

1847, 

"  133 

1848, 

"  200 

1848, 

"  319 

1849, 

"  375 

18.50, 

"  91 

1850, 

"  140 

18.50, 

"  266 

1851, 

"  321 

1853, 

"  238 

18-53, 

"  395 

1853, 

"  576 

1854, 

"  112 

18-55, 

"  547 

18.58, 

"  187 

1860, 

"  90 

1860, 

"  360 

1862, 

"  70 

1862, 

"  172 

1865, 

"  368 

1866, 

"  656 

1867, 

"  782 

1870, 

"  277 

1871, 

"  32 

1871, 

"  68 

1871, 

"  934 

1873, 

"  646 

1873, 

"  821 

1873, 

"  830 

1874, 

"  73 

1874, 

"  421 

1875, 

"  38 

1875, 

"  79 

1875, 

"  130 

1875, 

"  267 

1875, 

"  371 

1875, 

"  542 

1876, 

"  372 

1877, 

"  466 

1878, 

"  318 

1879, 

"  248 

1879, 

"  249 

1880, 

"  245 

Page 

Paoe 

1880, 

"  300 

209 

208 

1881, 

"  641 

632 

208 

1882, 

"  402,409 

211 

1882, 

"  410 

430,  558 

1884, 

"  315 

424 

95 

1884, 

"  328 

563,  564 

11 

1884, 

"  380 

118 

78 

1884, 

"  381 

198,207, 

214, 221 

95 

1884, 

«  438 

266,  267 

95 

1885, 

"  380,464 

635 

373,  376 

1886, 

"  283 

563,  564 

195 

1886, 

"  409 

301 

432 

1886, 

"  593 

109 

90 

1887, 

"  24 

142 

109 

1887, 

"  462 

301 

211 

1887, 

"  503 

564 

372 

1887, 

"  537 

198, 

207,  210 

372 

1887, 

"  692 

118 

213 

1887, 

"  708 

266,  267 

136 

1888 

"  294 

563 

372 

1888, 

"  454 

273 

198, 

22.3,  298 

1888, 

"  485 

266,  267 

369, 

372,  632 

1889, 

"  42 

137 

198,  225 

1889, 

"  58 

266,  267 

211 

1889, 

"  65 

660 

31 

1889, 

"  191 

632 

266 

1889, 

"  560 

237,  301 

213 

1890, 

"  51 

198,  205,  206, 

213,  219 

604 

1890, 

"  248 

198, 

205,  213 

372 

1890, 

"  398 

237,  301 

200 

1890, 

"  424 

376 

372 

1890, 

•'  497 

632 

265 

1890, 

"  553 

6.32 

211 

1890, 

"  563 

373 

198 

213,  214 

1890, 

"  569 

477,  478 

238, 

369,  632 

1891, 

"  173 

236 

211 

1891, 

"  254 

477,  478 

198 

21.3,  273 

1892, 

"  61 

477,  478 

372 

1892, 

"  92 

477,  478 

211 

1892, 

"  252 

477,  478 

198 

1892, 

"  399 

6.57 

211 

1892, 

"  401 

226,  227 

273 

1892, 

"  403 

226,  227 

372 

1892, 

"  488 

481 

318 

319,  322 

1892, 

"  594 

198,  207 

214,  221 

226 

1892, 

"  632 

424 

211,  212 

1892, 

"  673 

237,  301 

266,  267 

1892, 

"  677 

368 

279 

1892, 

"  682 

7 

2.38 

1892, 

"  686 

452 

1.36 

1892, 

"  687 

363 

364,  373 

636 

1892, 

"  688 

384 

412,  413 

373 

1892, 

"  689 

211,  383 

372 

1893, 

"  173 

237 

211 

1893, 

"  207 

137 

619 

1893, 

"  601 

145 

238 

1898, 

"  684 

424 

563 

189.3, 

"  686 

558,  641 

563 

1893, 

"  701 

373,  636 

211,  212 

1894, 

"  400 

632 

209 

1894, 

"  421 

658 

213,  602 

TABLE   OF   STATUTES. 


UNITED   STATES. 


UNITED  STATES   REVISED   STATUTES. 


Sect. 
475-496 
64o 
721 

751-753 
751-766 
762-766 
914,  915,  916 
1116-1119 
1418-1420 
1956-1968 
1993 
1994 
1999 
2165 

2165-2174 
2168 
2172 
3051 
3187 
3194 
3332 
3466 
3893 

4386-4390 
4395-4398 
4883-4885 

4886  j 

4887 

4892,  4893 

4894,  4895,  4896 

4897 

4898 

4899 

4900 

4902 

4900,  4910 

4911-4914,  4915 

4916 

4917 

4918 

4920 


Page 

516 

100 

22 

100,  102 
101 
124 
23 
296 
296 
481 
72,  126 

128,  133 
139 
126 
127 
127 
126 
556 
558 
559 
556 
564 
57,  118 
453 
481 
524 

507,  509, 

511,  538 

510,  538 

521 

524 

525,  538 
526 

526,  538 
538 
512 
523 
524 
522 

521,  522 
523,  536 
537,  538 


Sect. 

Page 

4922 

522 

4924-4927 

525 

4928,  4932 

525 

4952 

495,  496,  504 

4954 

255,  495,  501 

4955 

502 

4956 

495,  500 

4958 

495 

4959 

495,  500 

4962 

500 

4963 

495 

4964-4966 

495,  505 

4967 

493,  495 

4967-4970 

488 

4970 

505 

4971 

495 

4979,  4989 

569 

4998 

569 

5014-5017, 

5019 

569 

5021 

570 

5023-5028, 

5029 

570 

5044-5046 

571 

5045 

572 

5047-5066 

571 

5067-5071, 

5072 

572 

5073-5075 

573 

5076-5100 

573 

5101,  5103 

573 

5104-5120 

574 

5112,5115 

574 

5117 

572 

5121-5123 

574 

5128 

563 

5270-5276 

113 

5272 

115 

5273 

114 

5278 

104 

5349-5351 

249 

Tit.  XXXIV. 

556 

"    XXXV. 

556,  558 

"    LXI. 

(Bankruptcy) 

568 

UNITED  STATES   STATUTES  AT   LAEGE. 


5  Stat.  L.  555 

32 

22  Stat. 

L.  215 

118 

12    "      "   193 

32 

25    " 

"   1 

485 

12    "      "   755 

58 

25    " 

"   496 

111 

12    "      "   820 

470 

25    " 

"   1009 

481 

14    "      "  48 

32 

26     " 

"   313 

433 

15    "      "  Append.  No.  15 

470 

26     « 

"   1106 

488,  493,  495 

21     "      "  331 

296 

TABLE    OF    STATUTES. 


Ixi 


LAWS   OF  THE   UNITED   STATES. 


Laws  of 
1789,  Ch.  20 
1797,  "  20 
1799,  "  22 
1870,  "  230,  §  102 
1875,  Act  of  Julv  12 
1881,  Ch.  138 


Page 

22 
564 
564 
493 

57 
553 


Page 

1882,  Ch.  378 

115 

1885,  "  353 

102 

1887,  "  340 

137 

1888,  "  1039 

118 

1891,  "  565 

488,  493,  495 

1893,  "  74 

523 

ENGLISH   STATUTES. 


20  Hen.  III.  c.  9 

257 

259 

9  Geo. 

II., 

c.  36 

374,  634 

SEdw.I.    c.  4 

477 

10  " 

" 

c.  26 

568 

4  "   "    Stat.  3 

148 

21  " 

" 

c.  31,  &c. 

83 

668 

18  "   "    c.  1 

440 

26  " 

" 

c.  33 

153 

17  Edw.  II.   c.  9  &  10 

305 

306 

28  " 

" 

c.  13 

568 

18  Edw.  III.   Stat.  3,  c. 

2 

148 

1  Geo. 

III 

,0.23 

49 

25  "   "     "   1 

344 

5  " 

" 

C.41 

568 

25  Hen.  VIII.  c.  22 

145 

12  " 

" 

c.  11 

142 

27  "  "    c.  10 

297 

12  " 

" 

c.  23 

568 

28  "  "    c.  7 

145 

18  " 

" 

c.  52 

668 

28  "   "    c.  16 

146 

38  " 

" 

C.87 

645,  646 

32  "   "    c.  1 

224,  371, 

441 

52  " 

" 

c.  101 

376 

32  "  "    c.  38 

146 

54  " 

" 

c.  96 

316 

34  "  "    c.  5 

441 

3  Geo. 

IV. 

,  c.  71 

453 

34  &  35  Hen.  VIII.  c,  4 

567 

571 

3  " 

" 

c.  75 

153 

34  &  35  "   "    c.  5 

224,  371 

4  " 

K 

c.  17,  &  c. 

76 

153 

37      "   "    c.  4 

634 

5  " 

" 

c.  83 

205 

1  Edw.  VI.  c.  12 

148 

9  " 

" 

c.  14 

293 

1   "   "    c.  14 

634 

9  " 

(< 

c.  31 

148 

1  Mary,  sess.  2,  c.  1 

146 

11  " 

" 

&  1  Wm. 

IV.,  c 

.43 

299 

1  &  2  Ph.  &  M.  c.  8 

146 

11  " 

" 

"  1  " 

"  c 

.47 

299 

1  Eliz.  c.  1 

146 

1  Wm.  IV., 

c.  40 

638 

1  "  c.  19 

376 

2  &  3  Wm. 

IV.,  c.  92 

161 

5  "  c.  4 

816 

3&4 

"  c.  15 

495 

13  "  c.  7 

567 

3&4 

"  c.  41 

161 

13  "  c.  10 

376 

3&4 

"   c.  103 

237-335 

14  '*  c.  11 

376 

4&5 

"   c.  22 

619 

14  "  c.  14 

376 

4&5 

"   c.  76 

234 

18  "  c.  3 

262 

5  &  6 

"   c.  54 

145 

18  "  c.  11 

376 

5&6 

"   c.  59 

453 

43  "  c.  2 

238 

318 

6&7 

"   c.  114 

62 

43  "  c  4 

387 

634 

7  Wm. 

[V. 

&  1  Vict.,  c 

.26 

586, 

587, 591, 

43  "  c.  9 

376 

592, 

593, 

595,  598 

1  Jac.  I.,  c.  11 

148 

3  &  4  Vict,  c.  9 

90 

1  "  "  c.  15 

567 

3&  4 

" 

c.  65 

469 

21  "  "  c.  19 

567 

5&  6 

' 

0.45 

495, 

497,  499 

12  Car.  II.,  c.  24 

272 

273 

6&  7 

' 

e.94 

124 

21  &  23  Car.  II.,  c.  10 

12,  445,  446 

640 

6&  7 

" 

c.  96 

93 

29  Car.  II.,  c.  3 

445,  446,  586 

594 

7&  8 

« 

0.  12 

496 

29  "   "  c.  30 

12 

7&  8 

" 

0.  15 

335 

31  "  "  c.  2 

47 

7&  8 

U 

0.81 

153 

1  Wm.  &  Mary,  sess.  2 

,  c.  2 

48 

7&  8 

" 

0.  101 

.262 

5  &  6  Wm.  &  Mary,  c. 

8 

568 

8&  9 

" 

c.  10 

262 

12  &  13  Wm.  III.,  c.  2 

48 

8&  9 

" 

c.  16 

367 

2  Geo.  n.,  c.  20 

568 

9&10 

(( 

0.93 

77, 251 

2  "  "   c.  22 

568 

11  &12 

" 

0.43 

62 

5  "  "   c.  30 

567 

12&13 

" 

0.92 

453 

Ixii 


15  &  16  Vict. 

15  &  16  " 

15  &  16  " 
15&16  " 

16  &  17  " 
16  &  17  " 
16  &  17  " 
18&19  " 

18  &  19  " 

19  &  20  " 

20  &  21  " 

20  &  21  " 

21  &  22  " 

21  &  22  " 

22  &  23  " 

23  &  24  " 
23  &  24  " 
23  &  24  " 
23  &  24  " 

23  &  24  " 

24  &  25  " 
24  &  25  " 
24  &  25  " 

24  &  25  " 

25  &  26  " 
25  &  26  " 
25  &  26  " 

27  &  28  " 

28  &  29  " 

29  &  30  " 
29  &  30  " 

29  &  30  " 

30  &  31  " 

31  &  32  " 

52  &  oo 

32  &  33  " 

53  &  84  " 
35  &  36  " 
35  &  36  " 

35  &  36  " 

36  &  37  " 
36  &  37  " 
36  &  37  " 

36  &  37  " 

37  &  38  " 
37  &  38  " 

37  &  38  " 

38  &  39  " 
38  &  39  " 
38  &  39  " 
38  &  39  " 

40  &  41  " 

41  &  42  " 
41  &  42  " 
41  &  42  " 
41  &  42  " 
41  &  42  " 


TABLE    OF    STATUTES. 


c.  12 

c.  24 
C.54 
c.  83 
c.  51 
c.  70 
c.  83 
c.  13 
c.  43 
c.  90 
c.  77 
c.  85 

c.  67 
c  93 
c.  61 
c.  47 
c.  125 
c.  134 
c.  144 
c.  145 
c.  86 
c.  95 
c.  100 
c.  114 
c.  81 
c.  86 
c.  89 
c.  95 
c.  72 
c.  87 
c.  117 
c.  118 
c.  131 
c.  122 
c.  68 
c.  70 
c.  52 
c.  19 
c.  38 
c.  65 
c.  9 
c.  12 
c.  31 
c.  66 
c.  47 
c.  50 
c.  62 
c.  12 
c.  51 
c.  77 
c.  85 
c.  16 
c.  16 
c.  18 
c.  19 
c.  67 
c.  73 


Page 

496 

586,  587 

62 

540 

657 

306 

231,  540 

306 

158 

602 

161, 164,  167,  170, 

174,  175,  177 

262 

174,  264 

174,  175,  177,  265 

148 

367 

634 

163 

236 

174 

148 

144 

587 

163 

306 

401,  402,  404 

77,  251 

587 

124 

303 

303 

367,  393 
205 

174,  231 
453 

113,  114 
124 
237 
262 
262 
176,  241,  243 
163 
163,  164,  241,  602 
303 
200 
293 
496 

124,  125 

602,  665 
124 
478 
237,  301,  335 
209 
177 
125 
123 


43  Vict.,  c.  14 


43&44 
43&44 
44  &  45 
44&45 
44&45 
45 
45&46 
45&46 
45&46 

46&47 

46&47 
47  &48 
48&49 
49  &50 
49&50 
49  &50 
51  &  52 
51  &  52 
51  &52 

51  &52 

52  &  53 
52  &  53 

52  &  53 

53  &  54 
53&54 
53&54 

54 

54  &  55 
54&55 
54  &  55 
54&55 

55 


c.  35 
c.  42 
C.12 
C.41 
c.  51 
C.22 
C.38 
c.  40 
c.  75 

C.57 

c.  82 
c.  14 
0.63 
c.  27 
c.  33 
0.37 
0.8 
0.17 
0.42 
0.  50 
c.  5 
0.  7 
0.41 
0.5 
0.63 
c.  64 
0.  15 
0.3 
0.65 
0.  73 
0.  75 
0.  11 


Page 
657 

481 

335 

657 

236 

481 

43 

2.36 

495 

197,  198.  200,  200, 

213,  222 

521,536,543,  552, 

558 

306 

198 

543,  552 

2J6 

4116 

543,  552 

657 

495 

634 

543,  552,  553 

478 

657 

306 

306 

402 

394 

554 

245 

306 

684 

301,  335 

634 


Bankruptcy  Acts 
Bill  of  Rights 

Companies  Act  (1862)  401,  402, 

Companies  (Winding-up)  Act  (1890) 
Distribution,  Stat,  of 
Employers'  Liability  Act  (1880) 
Extradition  Act  (1870)  113, 

Factory  Acts  237,  3Ul, 

Foreign  Juris.  Act 
Frauds,  Stat,  of 
Habeas  Corpus  Act 
Infants'  Custody  Act 
Infants'  Relief  Act 
Judicature  Acts 
Lord  Campbell's  Act 
Lord  Tenterden's  Act 
Merton,  Stat,  of 
Quia  Emptores,  Stat,  of 
Settlement,  Act  of 

Wills  Act       26,  586,  587,  591, 
593,  595, 


445,  440,  586, 
176,  241, 

82, 

77, 


257 


568 
48 
404 
402 
640 
335 
114 
335 
124 
594 
47 
243 
293 
306 
251 
293 
259 
440 
48 
592, 
598 


THE   LAW 

OP 

PERSOi\S  AND  PERSONAL  PROPERTY, 

BEING   AN   INTRODUCTION   TO   THE   LAW   OF 
CONTRACTS. 


BOOK    L 

THE   LAW   OF   PERSONS. 


CHAPTER    L 

INTRODUCTORY. 

A  FULL  treatment  of  the  subject  of  Municipal  Law  would 
necessarily  include  a  discussion  and  comparison  of  the  law  as  it 
is  found  in  the  various  States  and  Territories  of  the  Union,  as 
well  as  that  expounded  by  the  tribunals  of  the  United  States. 
But  as  the  author  has  designed  this  work  principally  for  the  use 
of  students,  he  has  deemed  it  most  useful  for  the  special  subject 
in  hand  to  state  the  law  upon  such  subject  first  as  it  is  adminis- 
tered in  England,  using  the  term  "  common  law"  with  this  sig- 
nification for  convenience ;  and  then  to  give  such  additions  and 
illustrations  from  American  decisions  as  have  seemed  most 
serviceable.  The  principles  of  the  United  States  Constitution 
and  the  decisions  upon  constitutional  questions  where  private 
rights  have  been  affected,  have  also  been  discussed.  The  United 
States  law,  so  far  as  it  may  conflict  with  a  State  law,  is  supreme, 
and  of  binding  force  throughout  the  country. ^ 

The  great  object  of  law  is  the  creation  and  enforcement  of 
legal  rights.  Some  writers  prefer  to  regard  the  subject  from 
a  dilferent  point  of  view,  and  to  regard  law  as  a  mode  of  estab- 
lishing and  enforcing  legal  duties.  Whichever  view  is  adopted 
the  result  is  quite  the  same,  for  a  right  implies  a  duty  and  a 
duty  implies  a  right.  It  is  most  convenient  to  consider  the 
subject  from  the  point  of  view  of  rights. 

1  Constitution  of  United  States,  Art.  VL  §  2. 
1 


2  THE   LAW   OF   PEESONS. 

The  phrase  "  a  right "  as  here  used  is  not  equivalent  in  mean- 
ing to  the  word  "  right  "  used  adjectively.  The  former  has  merely 
a  legal  signification;  while  the  word  "right"  with  its  correlative, 
"  wrong,"  has  an  ethical  or  moral  meaning.  The  one  is  an 
expression  in  jurisprudence  ;  the  otlier,  in  morals.  It  is  con- 
ceivable that  a  person  may  have  a  right  in  law,  which  in  morals 
would  be  condemned. 

The  expression,  "  a  right,"  in  the  legal  sense,  includes  the 
legal  power  of  the  person  in  whom  the  assumed  right  resides 
to  control  the  actions  of  others.  This  power  of  control  is  derived 
from  the  authority  of  the  state,  and  is  called  "  a  law." 

A  single  illustration  will  suffice.  A.  is  said  to  own  a  watch. 
This  statement  implies  that  he  can  exclude,  by  the  aid  of  the 
state,  all  other  persons  from  the  use  or  enjoyment  of  it.  Another 
form  of  statement  is,  that  all  other  persons  are  under  a  duty  to 
abstain  from  interfering  with  his  right  to  the  watch,  and  his 
use  of  it. 

A  right  is  secured  by  a  direction  or  command,  or  some 
authoritative  expression  of  the  will  of  the  state,  which,  at  the 
same  time,  supplies  some  mode  of  enforcement  of  the  right.  This 
last  element  is  technically  called  the  "  sanction  "  of  the  law.  In 
some  branches  of  the  law,  e.  g.,  public  or  criminal,  the  sanction 
may  be  punishment ;  in  others,  e.  g.^  the  civil,  it  may  be  prevention 
or  remedy  ;  again,  any  act  opposing  the  right  may  be  declared 
invalid.  A  striking  instance  of  invalidity  as  a  sanction  is 
found  in  the  constitutional  law  of  this  country,  which  frequently 
makes  void  the  acts  of  individuals,  or  even  of  States,  which  are  in 
opposition  to  a  constitutional  provision. 

The  general  name  of  the  whole  group  of  provisions  estab- 
lished for  the  enforcement  of  rights  is  "  remedies  "  or  "  pro- 
cedure." Rights  themselves  constitute  the  "  substantive  law." 
The  whole  subject  may  thus  be  arranged  under  two  principal 
heads,  —  Substantive  Law  and  Procedure.  This  last  branch  is 
called  by  some  writers  Adjective  Law. 

The  term,  a  right,  as  used  in  substantive  law  implies,  (1)  a 
"  person  "  in  whom  the  right  inheres ;  (2)  a  person  or  persons 
bound  to  submit  to,  or  not  to  interfere  with,  the  exercise  of  the 
right ;  and  (3)  a  subject  over  which  the  right  is  claimed. 

(1)  The  "  person  "  wlio  may  claim  the  right  may  be  either 
natural  or  artificial.  The  term  "  artificial  person  "  is  used  to 
denote  a  group  of  individuals  who  when  taken  together  consti- 
tute a  single  "  person  "  in  law,  such  as  a  corporation  ;  or  it  may 
refer  to  a  natural  person  who  has  a  representative  or  artificial 
character  impressed  upon  him.     Examples  of  the  first  class  are 


INTRODUCTORY.  3 

ordinary  corporations,  or  even  States  and  nations.'  Thus  the 
United  States  may  be  regarded  as  an  artificial  person,  and  in 
this  character  have  a  right  to  sue  in  a  foreign  court.^  Examples 
of  the  second  class  are  kings,  bishops,  deans,  etc.  So  a  foreign 
prince  may  bring  an  action  in  the  courts  of  another  country,  not 
merely  in  his  individual  but  in  his  political  capacity.^ 

(2)  The  "  person  "  hound  to  submit  to  the  exercise  of  the  right 
may  also  be  either  natural  or  artificial.  It  should,  however,  be 
remembered  that  in  the  actual  condition  of  law,  rights  may  exist 

.against  some  artificial  persons  with  no  adequate  means  of 
enforcement.  Thus  a  State  of  this  country  cannot  in  general  be 
sued  in  its  own  courts,  and  only  under  very  special  circumstances 
in  the  courts  of  the  United  States.'* 

It  is  a  further  rule  that  a  foreign  state  cannot  be  sued  in 
the  courts  of  this  country.  This  proposition  has  been  held  in 
the  English  courts.^  The  decisions  of  this  class  would  no  doubt 
be  applicable  here.  Even  if  a  foreign  king  or  sovereign  should 
come  into  this  country,  he  could  not  be  sued  here  for  acts  done 
by  him  in  his  sovereign  character  at  home.^  This  exemption 
from  suits  only  applies  to  a  sovereign  prince,  and  accordingly 
was  not  extended  to  the  Khedive  of  Egypt,  who  was  not  deemed 
to  be  a  sovereign. '' 

(3)  The  subject-matter  over  which  a  right  may  be  claimed 
embraces  the  whole  domain  of  law. 

Briefly,  the  subject-matter  of  private  law  includes  the  right 
of  the  individual  to  the  security  and  freedom  of  the  person, 
as  well  as  the  power  to  labor  in  such  manner  as  he  may  see  fit, 
and   also    his    property   in   phj'sical    objects   and     immaterial 

1  The  Republic  of  -Honiluras  v.   Soto,  contract  by  the  Crown,  and  it  is  immaterial 

112  N.Y.  310.  whether  the  breach  is  occasioned  by  the 

-  The    United    States   of    America    v.  acts  or  by  the  omissions  of  the  Crown  offi- 

Prioleau,  11  Jur.  N.  s.  792  ;  United  States  cials.      Windsor  &  Annapolis  Ey.   Co.  v. 

of  America  v.  Wagner,  L.  R.  2  CL  App.  The   Queen,    L.    R.    II    App.    Cas.  607  ; 

582.  Thomas  v.  The  Queen,  L.  R.  10  Q.  B.  31; 

3  The  King  of  Spain  v.   Hullett,  1  CL  Feather  v.  The  Queen,  6  B.  &  S.  257.     The 

&  F.  333.  theory   of  a   petition   of  right    seems   to 

*  It  is  somewhat  singular  that  the  vari-  be   that  the  sovereign  power  consents  to 

oris  American  States  have  not  apparently  abide  by  the  decisions  of  its  courts  ren- 

adopted  the  commou-law  doctrines  of  "  the  dered  against  itself,  and  that  this  consent 

petition  of  right "  whereby  the  individual  may  be  presumed  as  a  constant  thing,  so 

can  subject  the  sovereign  to  the  perform-  that  it  is  not  necessary  to  show  in  each 

ance   of  obligations  growing  out  of  con-  case  an  affirmative  act  of  consent, 
tracts.     This  doctrine  provides  a  mode  of  *  De  Haber  v.  The  Queen  of  Portugal, 

limiting  the  sovereign  power  in  respect  to  —  Wadsworth  v.  The  Queen  of  Spain,  16 

the  invasion  of  the  right  of  private  prop-  Jur.  164;  s.  c.  17  Q.  B.  171. 
erty,  and  is  thoroughly  well  established  in  '^  Tlie  Duke  of  Brunswick  v.  The  King 

England.      Thus  a  petition  of  right  will  of  Hanover,  2  H.  L.  Cas.  1. 
lie  for  damages  resulting  fron!  a  breach  af  "  The  Charkieh,  2S  L.  T.  K.  s.  513. 


4  THE   LAW   OF   PEKSONS. 

products.  It  also  embraces  freedom  of  thought  and  expression, 
but  all  these  arc  to  be  used  in  subordination  to  the  general 
welfare  of  society  in  accordance  with  just  and  equitable  rules. 

Rights,  however,  do  not  present  themselves  in  law  as  mere 
abstract  propositions.  In  that  aspect,  law  would  be  but  a  sys- 
tem of  philosophy.  Rights  appear  in  connection  with  acts 
done  either  by  the  claimant,  or  by  others  who  may  perhaps 
dispute  the  right.  It  will  accordingly  become  necessary  to  con- 
sider the  nature  of  the  act  done.  Questions  of  intent  will 
arise,  or,  perhaps,  of  negligence,  accident,  or  capacity  to  do  a 
legal  act.  It  is  the  function  of  courts  to  solve  these  problems, 
and  to  determine  what  the  right  is,  as  well  as  the  question 
whether  it  has  been  so  attacked  or  violated  in  the  particular 
instance  as  to  justify  the  interposition  of  the  state.  The  court 
will  not,  however,  solve  a  mere  abstract  proposition.  The 
matter  must,  in  general,  be  presented  to  it  through  the  medium 
of  an  action  in  which  the  one  who  alleges  the  existence  of  a 
right  and  its  violation  by  another,  must  establish  his  allega- 
tion, while  the  person  against  whom  the  claim  is  made  is  so 
cited  as  to  have  an  opportunity  to  deny  or  i^tefute  the  allegations 
made  agtiinst  him. 

The  word  person,  as  used  in  law,  has  a  technical  meaning. 
It  is  one  in  whom  a  right  may  inhere,  and  who  has  a  standing 
(locus  standi)  in  a  court  of  justice  to  assert  it.  It  is  not  synony- 
mous with  the  word  "individual."  An  individual  actually 
alive,  but  "  civilly  "  dead,  is  not  a  person  in  law.  In  like  manner 
a  slave  is  not  a  "person,"  since  he  can  neither  have  rights 
in  the  technical  sense,  nor  assert  his  "natural  rights"  as  an 
individual  in  court- 
It  is  now  obvious,  that  a  classification  of  law  may  be  made  to 
turn  upon  the  various  persons  to  whom  legal  rules  may  be 
applied.  If  the  state  or  nation  is  the  person  in  whom  the  right 
inheres,  or  against  whom  it  may  be  claimed,  the  matter  belongs 
to  the  domain  of  Public  Law.  If  two  or  more  nations  are  con- 
cerned, it  is  a  case  of  International  Public  Law.  In  other  words, 
where  public  i>ersons  are  concerned,  the  case  belongs  to  public 
law;  if  private  persons  are  involved,  the  case  is  one  of  private 
law.  Tliese  distinctions  may  be  much  interlaced,  as,  for 
instance,  if  a  private  individual  should  become  indebted  to  the 
state.  His  liability  would  in  general  be  the  same,  in  such  a 
case,  as  if  he  had  incurred  a  similar  obligation  to  a  private 
person. 

Public  Law  embraces  that  whole  branch  of  law  in  which  the 
state,  if  the  matter  came  before  a  co\irt  of  justice,  would  appear 


INTRODUCTORY.  5 

as  a  party  directly  interested.  It  also  includes  controversies 
between  individuals,  in  which  doctrines  of  a  public  nature  are 
involved  so  as  to  be  necessarily  considered  for  their  solution. 
Under  Public  Law  may  be  grouped  International  Law,  Constitu- 
tional Law,  Criminal  Law,  and  Administrative  Law.  These 
do  not  fall  within  the  range  of  this  work  except  so  far  as  they 
may  incidentally  affect  private  law. 

Private  Law  includes  all  matters  in  which  an  individual  is 
interested  as  distinguished  from  the  state.  Its  rules  may  be 
applied  to  the  state  itself  when  seeking  to  vindicate  a  right 
analogous  to  that  which  a  private  individual  might  claim. 
Thus  if  the  United  States  were  to  sue  in  a  foreign  court  to 
recover  property  which  they  claimed  was  wrongfully  detained 
by  an  individual,  they  would  be  obliged  to  submit  to  the  rules 
ordinarily  applied  to  individuals  seeking  redress  in  similar 
cases.  So  if  a  public  person,  e.  g.^  the  Khedive  of  Egypt,  were 
to  use  a  ship  for  the  purpose  of  trade,  it  would  in  the  case  of 
collision  at  sea  be  subjected  to  the  same  rules  which  would  be 
applied  to  merchant-men  owned  by  individuals.^  The  subject  of 
International  Private  Law,  Conflict  of  Laws,  or  Private  Inter- 
national Law,  —  several  phrases  for  the  same  thing,  —  belongs 
not  to  public,  but  to  private  law.  The  scope  of  the  subject  is 
to  ascertain  the  rights  or  remedies  of  private  persons  either 
when  a  contract  is  made  or  to  be  performed  in  one  country, 
and  it  comes  up  for  consideration  in  the  courts  of  another, 
or  an  act  other  than  a  contract  occurs  in  one  state,  and  is  the 
subject  of  legal  consideration  in  another. ^ 

The  object  of  this  work  is  to  serve  as  an  introduction  to  the 
law  of  contracts ;  and  upon  this  subject  the  general  Municipal 
Law  of  the  States  of  the  Union  will  chiefly  be  considered. 

Municipal  Law  has  been  defined  to  be  a  rule  of  civil  conduct 
prescribed  by  the  supreme  power  in  the  state.  The  municipal 
law  of  a  State  may  be  considered  as  arranging  itself  under  four 
great  divisions. 

(1)  The  law  of  nations  as  applied  to  cases  arising  within  the 
State;  (2)  The  Constitution  of  the  United  States  and  the  laws 
and  treaties  made  under  it;  (3)  The  constitution  of  the  State 
and  the  construction  put  upon  it  by  the  courts ;  (4)  The  other 
law  of  the  State  not  embraced  in  the  preceding  divisions,  in- 
cluding the  common  and  statute  law. 

1  The  Charkieh,  28  L.  T.  n.  s.  513.  taken  in  an  unusual  sense.    The  expression 

2  The  phrase  "International  Private  "  Application  of  Foreign  Law  "  seems  to  be 
Law,"  now  much  in  use,  is  not  well  chosen,  more  accurate,  though  not  all  that  could 
since  the  word  "International"  is  to  be  be  desired. 


6  THE   LAW   OF   PERSONS. 

The  first  two  of  these  divisions  will  not  be  considered  in  this 
work,  except  so  far  as  they  may  incidentally  affect  State  law. 

Analyzing  the  definition  of  municipal  law  above  given,  it 
will  be  seen  that  it  is,  First,  a  rule,  or  in  other  words  a  direction 
or  command.  It  must  be  distinguished  from  counsel  or  advice, 
which  has  in  it  no  element  of  compulsion.  Law  does  not 
originate  in  a  contract,  but  in  an  order  from  the  sovereign 
power. 

Second,  It  is  a  rule  of  civil  conduct.  The  word  "civil"  is 
employed  in  the  definition  to  distinguish  it  from  a  rule  of 
morals  or  of  religion.  The  object  of  law  is  to  control  the 
relations  of  the  individual  towards  society,  or  of  one  society  or 
state  towards  another. 

Third,  It  is  prescribed.  This  word  principally  applies  to 
statute  law,  to  be  hereafter  explained.  The  common  law  is 
assumed  to  rest  upon  customs  prevailing  among  the  people. 
These  are  from  time  to  time  ascertained  and  announced  by 
the  courts.  When  this  announcement  is  made,  the  rule  is 
legally  regarded  as  having  existed  from  time  immemorial, 
whether  it  has  so  in  fact  or  not.  This  theory  frequently 
imposes  a  geat  hardship  upon  persons  who  have  made  contracts 
cr  performed  acts  upon  a  different  view  of  the  rule  governing 
the  case.^  A  statute  is  said  to  be  prescribed  when  it  is 
sufficiently  communicated  in  any  manner  to  those  for  whom  it 
is  intended.     This  may  be  either  by  oral  proclamation,  writing, 

1  On   this  account,    courts   frequently  self  have  come  to  the  same  conclusion  as 

refuse  to  change  by  decision  an  existing  the  judges  did  in  the  beginning  is  inima- 

and   long  established   rule  of  law,    even  terial."     Pandorfi?.  Hamilton,  17  Q.  B.  D. 

though  it  may  be  incorrect  in  principle,  670,   674,   per   Lord    Esher,   M.  E.       In 

being  apprehensive  that  a  reversal  may  be  another  case  this  statement  is  made  :  "  If 

subversive   of  rights   of  property.      It  is  the  matter   were  even  doubtful  I  should, 

wiser  in  such  a  case  to  allow  the  rule  to  hesitate  very  long  .  .  .  before  I  laid  down 

stand,  and  leave  it  to  the  legislature  to  a  different  rule  of  construction  in  relation 

introduce  a  new  rule  acting  only  prospec-  to  sections  of  the  Wills  Act  which  have 

tively.     There  is  certainly  some  variety  of  had  for  many  years  a  particular  construc- 

expression  by  judges  on  this  point.     Thus  tion  given  to  them,  because  it  is  impossible 

in  a  recent  case  the  court  said  :  "  AVhere  to  say  how  many  persons  may  have  acted 

documents  are  in  daily  use  in  mercantile  upon  the  faith  that  that  construction  was 

affairs  without  any  substantial  difference  correct,    and  rested  the  disposal  of  their 

in  form  from  time  to  time,  it  is  most  ma-  property  upon  that  belief.    Of  course,  if  it 

terial   that   the   construction    which   was  ivere   dear  that  the  construction    put  by 

given  to  them  years'ago,  and  which  has  the  courts  upon  the  section  were  torong,  it 

from  time  to  time  been  accepted  in  the  Avould  be  our  dutj%  disregarding  the  result, 

courts  of  law  and  in  the  mercantile  world,  to  express  a  contrary  opinion."     Airey  v. 

should  not  be  in  the  least  alteied,  because  Bower,    L.   R.    12   App.    Cas.    263,    269. 

all  subsequent  contracts  have  been  made  This  last  case  was  one  of  the  construction 

on  the  faith  of  the  decisions.      Therefore  of  a  sfntiite,  but  still  a  construction  based 

whether  one  thinks  that  one  would  one's  upon  common-law  principles. 


INTKODUCTOEY.  7 

or  printing.  In  modern  times  it  is  usual  to  print  statutes 
either  in  official  journals  or  specially  authorized  volumes.  It 
is  a  fair  deduction  from  this  part  of  the  definition  that  a  statute 
should  not,  in  general,  go  into  effect  until  a  sufficient  time  has 
elapsed  after  its  enactment  for  its  provisions  to  become  known. 
This  salutary  doctrine  was  not  recognized  by  the  common  law 
of  England.  There  was  a  legal  fiction  that  an  entire  session  of 
Parliament,  however  long  it  might  be,  was  to  be  regarded  as  a 
single  day.  The  result  was  that  an  act  which  was  not  criminal 
when  committed,  might  become  so  by  a  statute  subsequently 
enacted  during  the  session  of  Parliament  which  embraced  the 
time  when  the  act  was  done.  This  harsh  rule  is  now,  in  gen- 
eral, done  away  with  by  statute.  This  is  true  even  in  Eng- 
land. ^  It  is,  however,  in  some  States  still  the  rule  that  a 
statute  takes  effect  from  the  earliest  moment  of  the  day  on  which 
it  is  enacted.^  In  New  York  there  is  a  statutory  rule  that  a  law 
is  not  to  go  into  effect  until  twenty  days  after  its  passage  unless 
some  other  time  is  fixed  in  the  law  itself.^  (a)  Assuming  that 
this  requisite  publication  has  been  made,  ignorance  of  the  law 
is  no  excuse  for  its  violation.  Where  such  ignorance  in  fact 
exists,  the  only  relief  possible  is  either  a  reduction  of  punish- 
ment where  the  court  has  a  discretion  in  that  respect,  or  an 
application  to  the  pardoning  power.  Under  this  general  rule, 
a  man  may  be  criminally  liable,  though  he  may  believe  in 
good  faith  that  he  had  a  legal  right  to  do  the  act  for  which  he 
is  arraigned.  "* 

Fourth^  The  law  must  emanate  from  the  supreme  power  in  the 
state.  This  supreme  power  is  vested  in  the  people,  who  may 
parcel  out  to  the  legislature  legislative  power  as  they  see  fit.  A 
portion  of  the  law-making  power  is  delegated  to  the  courts 
through  the  medium  of  decisions.  It  may  also  be  conceded 
to  local  bodies,  such  as  cities,  villages,  or  towns.       In  each  of 

1  Bonn  V.  Carvallio,  4  Nev.  &  M.  893.  city  where  the  promulgation  of  the  law  is 

2  Arrowsmith  v.  Hornmeniiig,  Sup.  C't.  made  and  the  chief  town  of  the  Depart- 
Ohio,  23  Am.  Law  Reg.  N.  s.  249,  254  ;  nient.  A  table  is  annexed,  showing  the 
Matthews  v.  Zane,  7  Wheaton,  164.  distances  to  the  chief  towns,  and  the  cor- 

3  This  wise  rtlle  was  as  to  its  substance  responding  days  that  precede  the  time 
borrowed  from  the  French  code.  The  sub-  when  the  law  will  take  effect  in  each  De- 
stance  of  the  provisions  in  that  instrument  partment.  In  special  cases,  the  law  may  be 
is,  that  laws  are  to  be  published  in  the  made  to  take  effect  immediately.  French 
official  bulletin,  and  shall  go  into  effect  in  Civil  Code,  Preliminary  Title,  Art.  1,  and 
each  Department,  except  in  that  where  the  Ordinance  of  27  Nov.,  1816.  The  New 
government  is  fixed,  one  day  after  official  York  rule  is  much  simpler  and  more  easy 
publication,  increased  by  as  many  days  as  of  application. 

there  are  ten  "  myriametres  "  between  the  *  Unwin  v.  Clarke,  L.  R.  1  Q.  B.  417. 


(a)  See  in  New  York,  The  Legislative  Law,  ch.  682,  Laws  1892,  §  43. 


8  THE    LAW   OF   PEKSONS. 

these  instances,  the  true  law-making  power  resides  in  "the 
people,"  who  act  indirectly  rather  than  directly.  There  thus 
arises 'in  the  United  States  a  great  branch  of  law  termed 
"constitutional  law."  Much  of  this  consists  in  checks  or 
limitations  upon  the  power  of  a  State  legislature  or  of  Con- 
•i-rcss  to  enact  laws.  This  kind  of  restriction  does  not  prevail 
in  England. 

The're  is  an  important  distinction  between  the  legislative 
power  of  Congress  and  that  of  a  State  legislature.  The  power 
of  Congress  to  legislate  is  derived  solely  from  a  written  instru- 
ment, viz.,  the  Constitution  of  the  United  States.  Its  authority 
must  be  found  either  in  the  express  words  of  the  Constitution, 
or  be  reasonably  implied  from  it.  On  the  other  hand,  a  State 
legislature  has  the  broad  power  of  the  English  Parliament; 
except  so  far  as  it  may  be  restrained  by  the  United  States 
Constitution  or  the  constitution  of  the  particular  State.  In 
this  last  instance  one  does  not  search  the  respective  constitu- 
tions for  a  grant  of  power,  but  only  to  ascertain  what  restrictions 
upon  legislation  may  exist. 

In  a  complete  system  of  law,  remedies  are  commensurate  with 
rights.  It  is  a  settled  maxim  that  "  wherever  there  is  a  right 
there  is  a  remedy,"  —  ubi  jus,  ihi  remedium.  Remedies  are  of 
various  sorts.  In  courts  of  equity  they  are  mandatory,  preven- 
tive, specific,  or  in  other  form  adapted  to  the  exigencies  of 
the  case.  In  courts  of  common  law  they  either  restore  the 
possession  of  a  specific  thing  to  one  entitled  to  it,  or  give 
damages  to  the  injured  party.  These  damages  are  either 
compensatory  or  vindictive.  For  the  most  part,  they  are  com- 
pensatory, the  prevailing  principle  being  to  give  the  claimant- 
just  so  much  moftey  (and  no  more)  as  is  equivalent  to  the  value 
of  his  violated  right.  In  a  few  instances  damages  are  vindic- 
tive. In  this  case,  the  court  assumes  to  punish  the  violator  of 
a  right  by  awarding  more  than  compensatory  damages  to  the 
injured  party.  Though  this  principle  is  not  logical,  it  works 
well  in  practice  in  special  cases  where  the  criminal  law  is 
defective;  as,  for  example,  in  cases  of  fraud,  wanton  violation 
of  personal  rights,  etc. 

A  special  fact  must  be  noted  as  applicable  to  certain  acts  of 
a  wrongful  nature  which  may  injure  a  particular  individual,  and 
at  the  same  time  be  harmful  to  the  public.  So  far  as  it  injures 
an  individual  it  is  termed  a  tort;^  so  far  as  it  harms  the  public, 
it  is  a  crime.     In  one  aspect,  it  is  a  violation  of  private  law ; 

1  French  tort,  —  from  the  Latin  torqueo,  tortum,  —  a  thing  twisted  out  of  order  or 
line. 


INTEODUCTORY.  9 

in  the  other,  of  public  law.  In  the  one  case,  redress  is  sought 
in  the  name  of  the  party  injured ;  in  the  other,  in  the  name  of 
the  state  or  of  the  people.  Any  money  recovered  in  the  private 
action  belongs  to  the  party  injured;  any  fine  exacted  for  the 
criminal  act  regularly  belongs  to  the  public  treasury. 

By  the  common  law,  it  was  the  rule  that  a  civil  action  was 
suspended  until  a  criminal  proceeding  for  the  same  wrong  was 
ended  by  a  conviction  of  the  offender.  This  rule  was  based 
upon  public  policy  as  tending  to  make  the  execution  of  the 
criminal  law  more  efficient.  There  is  a  strong  tendency  in 
modern  legislation  to  do  away  with  this  distinction,  and  to  allow 
the  two  proceedings  to  be  carried  forward  at  the  same  time.  ^ 


1  N.  Y.  Code   of  Civ,   Pro.,   §   1899.  section   is   quite   inaccurately    expressed, 

The  language  of  the  section  is  that  where  since  it  is  not  the  case  of  the  violation  of 

the  violation  of  a  right  admits  of  a  civil  one  right,  admitting  of  two  prosecutions, 

and  also  of  a  criminal  prosecution,  the  one  but  of  two  distinct  rights,  the  one  private 

is  not  merged  in   the   other.      See  also  and  the  other  public. 
Gordon  v.  Hostetter,  37  N.  Y.  99.     This 


CHAPTER  II. 

THE  SOURCES   OF   THE  LAW. 

The  sources  of  American  law  must  for  the  most  part  be  sought 
in  English  law.  The  early  colonists,  having  come  from  a 
country  with  a  settled  system  of  law,  naturally  made  use  of 
rules  and  principles  with  which  they  were  familiar,  at  the  same 
time  rejecting  any  that  were  inconsistent  with  the  changes  in 
their  institutions  produced  by  the  American  Revolution  or  other 
causes.  On  their  separation  fro?n  the  mother  country,  they 
found  it  necessary  to  make  definite  provision  as  to  the  relation 
of  the  law  in  each  State  to  the  English  law.  The  provisions 
adopted  in  New  York  will  serve  as  an  illustration. 

In  the  35th  Article  of  the  Constitution  of  1777  of  that  State 
it  is  ordained  that  "  such  parts  of  the  common  law  of  England 
and  of  the  statute  law  of  England  and  Great  Britain,  and  of  the 
Acts  of  the  Legislature  of  the  Colony  of  New  York,  as  together 
did  form  the  law  of  the  said  colony  on  the  19th  day  of  April  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and  seventy- 
five  "  (date  of  the  battle  of  Lexington)  "shall  be  and  continue 
the  law  of  this  State,  subject  to  such  alterations  and  provisions 
as  the  legislature  of  this  State  shall,  from  time  to  time,  make 
concerning  the  same. "  ^  (a) 

There  are  but  few  instances  in  which  the  courts  of  New  York 
have  decided  that  an  English  statute  was  so  fully  adopted  as 
law  during  the  colonial  period,  as  to  make  it  a  part  of  the  gen- 
eral law  of  the  colony,  within  the  purview  of  the  constitutional 
provision  just  cited.  A  striking  instance  is  that  of  statutory 
restriction  on  the  power  of  religious  corporations  to  sell  their 
real  estate.  These  restrictions,  found  in  the  statute  of  13  Eliz. 
c.  10,  and  later  acts,  were  tacitly  adopted  in  the  colony,  and 
still   prevail.2     But  in  "general,  English  statutes  were  repealed, 

1  The  rules  adopted  in  other  States  are  -  M.    A.    Baptist    Church   v.    Baptist 

collected  in  Bishop's  First  Book   of  the     Church  in  0.  St.,  46  N.  Y.  131-141,  142, 
Law,  §  58,  note  4.  and  cases  cited. 


(«)  See  Constitution  of  the  State  of  New  York,  Art.  I.  §  17. 


THE    SOURCES    OF    THE   LAW.  11 

though  a  number  of  them  were  re-enacted,  with  some  changes, 
either  in  form  or  substance.^ 

English  law  of  the  date  fixed  by  each  State  is  accordingly  to 
be  studied  as  American  law.^  An  exception  must  be  made  as 
to  the  State  of  Louisiana,  The  civil  but  not  the  criminal  law  of 
that  State  is  embraced  in  a  code  based  upon  the  Code  Napoleon 
of  France. 

The  law  of  England  and  of  the  United  States,  in  reference  to 
its  origin,  is  divided  into  two  great  divisions,  — common  law 
and  statute  law.  The  latter  is  enacted  by  Parliament  in  Eng- 
land, and  in  this  country  by  Congress,  or  by  State  legislatures. 
The  former  is  said  to  depend  upon  custom  existing  from  time 
immemorial.  It  is  announced  from  time  to  time  by  courts, 
as  cases  present  themselves  for  adjudication.  The  courts  also 
have  much  to  do  with  statutes  and  constitutions,  applying  com- 
mon-law rules  of  interpretation  and  construction  in  ascertain- 
ing their  meaning  and  giving  them  due  application.  The  prime 
distinction  between  statute  and  common  law  is,  that  the  for- 
mer has  its  origin  in  legislative  enactment,  while  the  latter 
is  assumed  to  originate  in  custom,  and  to  obtain  authenticity 
from  the  decisions  of  courts.  The  law  of  any  State  of  the  Union 
may  be  said  to  consist  of  four  parts :  (1)  Such  rules  of  the  law 
of  nations  as  may  be  applicable  to  it  separately  from  the  general 
government;  (2)  the  law  and  Constitution  and  treaties  of  the 
United  States ;  ^  (3)  the  constitution  of  the  State ;  (4)  the  ordi- 
nary municipal  law  of  the  State. 

DIVISION   I.  — Common  Law. 

This  expression  has  in  law  two  meanings :  one  is  that  already 
given  as  contrasted  with  statute  law ;  the  other  is  a  narrower 
sense  in  which  certain  legal  rules  are  contrasted  with  other  legal 
rules  having  no  statutory  origin,  e.  g.,  common  law  as  contrasted 
with  equity.  The  wider  signification  is  mainly  adopted  in  this 
chapter. 

I.  Equity.  —  In  the  early  history  of  English  law,  equity  had 
little  or  no  place.     The  legal  business  of  the  people  consisted 

1  The  New  York  statute  repealing  the  lished  between  the  years  1765  and  1770. 
English  statutes  is  ch.  46  of  the  Laws  of  They  therefore  supply  a  summary  of  the 
1788,  §36.  Its  language  is,  "From  and  law  as  it  was  adopted  by  the  American 
after  May  next,  none  of  the  statutes  of  colonies  at  the  time  of  the  Revolution. 
England  or  of  Great  Britain  shall  operate  ^  Hawenstein  v.  Lynham,  100  U.  S. 
or  be  considered  as  laws  of  this  State."  483,  490. 

2  Blackstone's  Commentaries  were  pub- 


22  THE   LAW   OF   PERSONS. 

mainly  in  litigation  involving  title  to  the  various  estates  in 
land,  the  redress  of  injuries  to  the  person,  etc. 

Only  simple  remedies  were  needed  for  these  purposes.  As 
society  advanced,  and  business  became  more  complex,  the  scope 
of  law  required  enlargement,  and  new  remedies  were  necessary. 
The  introduction  of  trusts,  whereby  the  ownership  in  property 
was  divided  so  that  one  person  had  the  formal  OAvnership  and 
another  the  beneficial  enjoyment,  led  to  new  legal  principles. 
There  were  no  methods  known  to  the  ordinary  courts  for  the 
enforcement  of  such  rights.  A  new  set  of  tribunals  came  grad- 
ually into  existence  known  as  courts  of  "equity."  A  lead- 
ing one  of  these  was  held  by  the  Lord  High  Chancellor,  who 
presided  in  the  Court  of  Chancery,  —  a  high  court  of  equity 
jurisdiction. 

These  courts  are  largely  governed  by  special  rules  worked 
out  by  precedents  or  decisions.  Nothing  is  arbitrary,  or  merely 
the  result  of  reasoning  on  ethical  rules.  The  whole  subject  has 
become  a  matter  of  legal  science,  and  must  be  studied  in  the 
reports  of  cashes  and  in  treatises  on  equity  jurisprudence. 

II.  The  ^oman  or  Civil  Laiv  as  used  in  the  Admiralty,  Eccle- 
siastical, and  Military  Courts. —  The  Roman  law,  although  pre- 
sented in  modern  times  in  a  codified  form,  is  not  to  be  regarded 
as  statutory  law.  The  term  "  statute  "  can  only  be  applied  to 
law  enacted  by  the  legislature  of  the  State  where  the  law 
prevails.  If  any  State  tacitly  or  by  judicial  decision  adopts 
the  statute  of  another  State,  it  is  taken  into  the  law  of  the 
adopting  State  as  part  of  its  common  law.  The  Roman  law 
has  influenced  English  jurisprudence  in  a  variety  of  ways :  first, 
by  furnishing  a  storehouse  of  principles  from  which  the  ordi- 
nary courts  (law  and  equity)  could  draw,  where  their  own  rules 
were  insufficient  or  imperfect;  and  again  by  supplying  a  whole 
body  of  law  for  special  courts,  viz.,  admiralty,  ecclesiastical,  and 
military ;  and  finally,  by  the  suggestion  of  appropriate  and  reme- 
dial legislation.  An  instance  of  the  latter  is  the  statute  for 
distributing  the  personal  property  of  intestates,  passed  in  the 
reign  of  Charles  11. ,  and  of  general  prevalence  throughout  this 
country.  ^ 

A  sketch  of  the  Roman  law,  though  very  brief,  will  accord- 
ingly be  useful.  This  system,  like  all  other  permanent  systems 
of  jurisprudence,  had  an  historical  development.  Commencing 
practically  with  the  rude  rules  laid  down  in  the  Twelve  Tables, 
it  had  expanded  by  legal  adjudication  and  the  written  opinions 

1  22  &  23  Car.  II.  c.  10  ;  explained  by  29  Id.  c.  30. 


THE   SOURCES   OF   THE   LAW.  13 

and  treatises  of  learned  jurists,  into  a  great  and  complicated 
mass  of  rules.  It  therefore  became  highly  desirable  to  have  its 
leading  rules  arranged  in  systematic  form.  In  the  meantime 
the  empire  had  become  divided  into  its  Eastern  and  Western 
divisions.  The  most  successful  digest  of  the  law,  and  that 
which  has  left  its  chief  impress  upon  modern  jurisprudence, 
was  made  in  the  Eastern  empire  under  the  direction  of  the 
Emperor  Justinian,  about  the  year  a,  d.  630.  The  Pandects 
went  into  effect  in  the  year  a.  d.  533  (Dec.  30th). 

The  Roman  law,  as  then  arranged,  consisted  of  two  principal 
parts,  —  the  Pandects,  otherwise  called  the  Digests,  and  the 
Institutes. 

The  Pandects  or  Digests,  —  The  great  result  to  be  achieved  in 
forming  the  Digests  was  to  make  extracts  from  the  writings  of 
the  jurists  of  highest  repute,  and  to  classify  these  extracts  with 
the  name  of  each  author  attached,  in  fifty  "  books  "  or  divisions. 
This  work  was  designed  for  legal  practitioners.  Its  arrangement 
followed  existing  methods  then  in  use,  viz.,  the  praetor's  edict. 

Extracts  were  made,  from  the  works  of  thirty-nine  jurists.  It 
happened  that  these  writers,  in  some  instances,  contradicted 
each  other.  It  was  the  province  of  the  emperor  .when  these 
contradictions  were  called  to  his  attention  to  settle  ihe  question 
by  special  decision.  Some  of  these  decisions  remain.  The 
Pandects  are  the  principal  source  from  which  the  civil  or  Roman 
law  is  derived,  as  its  principles  now  prevail  on  the  continent  of 
Europe.  They  are  readily  accessible,  not  only  in  the  original 
Latin,  but  in  French  and  German  translations.^ 

Tlte  Institutes. — These  were  also  prepared  under  the  direc- 
tion of  Justinian  for  the  use  of  students.  There  was  already  in 
use  by  Roman  students  for  the  same  purpose  a  work  of  great 
value,  "Institutes  of  Gains."  Gains  was  a  jurist  of  remarkable 
merit.  His  work,  having  been  published  several  hundred  years 
before  that  of  Justinian,  had  become  in  part  obsolete.  Justinian 
did  little  more  than  prepare  a  new  edition  of  Gains,  with  the 
obsolete  portions  omitted.  It  may  be  said,  in  conclusion,  that 
"Justinian's  work  bears  much  the  same  relation  to  the  Institutes 
of  Gains,  as  do  the  commentaries  of  Sergeant  Stephen  to  those 
of  Sir  William  Blackstone."^ 

The  work  of  Gains  was  long  supposed  to  be  wholly  lost.  It 
was,  howevei",  discovered  in  1816  by  the  great  German  histo- 
rian, Niebuhr,  at  Verona,  Italy,  in  a  palimpsest,  the  epistles  of 

1  Select  titles  from  the  Pandects  were  University,  Eng.,  by  Professor  Holland 
published  at  the  Clarendon  Press,  Oxford    and  C.  L.  Shad  well,  Esq.,  in  18S1. 

2  Professor  Plolland. 


14  THE   LAW   OF   PEESONS. 

St.  Jerome  being  written  over  it.  It  has  since  been  fully 
deciphered,  and  has  shed  great  light  on  some  perplexing  features 
of  Roman  jurisprudence.  ^ 

The  "Institutes  of  Justinian"  is  the  more  important  of  the 
two  works  to  the  ordinary  student,  as  forming  a  portion  of 
the  corpus  juris  civilis, — "body  of  the  Roman  law."  There 
has  been  in  England  a  great  revival  of  interest  in  this  class  of 
studies,  and  the  Institutes  have  been  reprinted  a  number  of 
times  within  a  few  years  past  in  such  a  form  as  to  be  useful 
and  accessible  to  students.''^ 

The  New  Code  and  Novels.  — There  had  been  a  code  contain- 
ing imperial  ordinances  published  a.  d,  529.  After  the  publica- 
tion of  the  Institutes  and  Pandects,  Justinian  thought  it  desirable 
to  have  this  code  revised,  and  his  decisions  settling  controverted 
points  in  the  Pandects  included.  This  was  accomplished  in  the 
year  534.  This  branch  of  the  law  resembles  what  is  now  called 
statute  law,  and  stands  in  contrast  with  the  Pandects,  which  bear 
strongly  upon  their  face  the  marks  of  legal  discussion  and  the 
successful  tracing  of  rules  to  principles. 

The  Novels  consist  of  such  ordinances  as  the  emperor  made 
in  the  intervening  years  between  535  and  the  close  of  his  reign 
(a.  d.  565).  They  are  frequently  subversive  of  former  rules  of 
law.  They  were  issued  from  time  to  time  as  exigencies  might 
require,  and  were  never  officially  collected  by  him.  NumV)ers 
of  them  were  brought  together  and  published  after  his  death. 
They  are  not  of  much  value  to  the  modern  student  except  as 
matter  of  history. ^ 

TJie  Relation  of  the  Roman  Law  to  the  Admiralty,  Ecclesiasti- 
cal, and  Military  Jurisjjrudence  of  England.  —  The  Roman  law 
had  but  slight  influence  on  the  common  law  of  England  as 
administered  in  the  superior  courts.  It  was,  however,  different 
with  the  special  tribunals  having  in  charge  maritime  and  mili- 
tary questions,  the  probate  of  wills  of   personal    property,  the 

1  Professor  Gneist  of  Berlin  has  pub-  fhe  original,  with  a  careful  English  trans- 
lishedthe  "  Institutes  of  Gains"  in  tabular  lation  and  many  valuable  notes.  (Claren- 
form,  so  that  their  corresponding  passages  don  Press,  Oxford,  Eng.,  1883.)  Reference 
and  differences  may  readily  be  noted.  A  may  also  be  made  to  Sandars's  Justinian, 
similar  publication  with  English  transla-  ^  -phe  student  may  find  a  good  sketch 
tions  was  made  in  1882,  by  T.  Lambert  of  Roman  law  by  Mackeldey  (Dropsie's 
Mears,  Esq.  (Stevens  &  Sons,  London).  Ed.  1883).  Ortolan's  History  is  also  very 
See  also  Holland's"  Institutes  of  Justinian,  useful.  The  German  writers  must  be  re- 
Edited  as  a  Recension  of  the  Listitutes  of  sorted  to  for  a  complete  mastery  of  the  sub- 
Gains."     Oxford,  1881.  ject.     Puchta's  Institutionen  is  a  work  of 

2  The  recent  work  of  J.  B.  I\Ioyle,  Esq.,  high  merit.  Professor  Bryce,  of  Oxford,  has 
of  Lincoln's  Inn,  is  strongly  recommended  prepared  an  excellent  article  on  Justinian 
to  students.     It  contains  the  Institutes  in  in  the  Encyclopaedia  Britannica  (9th  ed.). 


THE   SOURCES   OF   THE   LAW.  15 

distribution  of  the  estates  of  intestates,  and  matrimonial  causes. 
The  three  last  named  topics  were  regarded  as  "  ecclesiastical " 
questions,  being  determined  by  the  bishops  in  their  courts,  or 
by  their  deputies,  e.  g.,  surrogates.  A  great  body  of  law  has 
thus  grown  up,  which  in  England  was  formerly  termed  ecclesias- 
tical law,  and  usually  in  this  country  probate  law,  testamentary 
law,  and,  in  respect  to  marriage  and  divorce,  matrimonial  law. 
These  subjects  will  be  considered  hereafter  under  appropriate 
divisions. 

Questions  arising  at  sea  are  mainly  governed  by  maritime  or 
admiralty  law.  They  were  at  first  in  England  disposed  of  by  a 
high  officer  termed  the  Lord  High  Admiral.  By  him  they  were 
assumed  to  be  delegated  to  a  judge  in  admiralty.  A  separate 
set  of  rules  grew  out  of  his  decisions,  which,  when  grouped 
together,  are  called  "admiralty  law." 

The  rules  of  the  Roman  law  had  much  influence  over  each  of 
these  subjects.  So  far  as  these  principles  grew  up  by  judicial 
decision  they  are  in  force,  not  because  they  are  Roman  law,  but 
because  by  custom  or  judicial  decision  they  have  been  incor- 
porated into  the  common  law,  and  have  thus  become  a  part 
of  it.i 

III.  Reports  as  Depositories  of  Mules  of  Lmv.  —  It  is  a  well  set- 
tled rule  of  law  that  legal  principles  are  to  be  evolved  by  "  cases  " 
or  controversies  submitted  in  regular  form  to  courts  of  justice. 
A  court  will  not  pass  upon  a  mere  abstract  question  of  law.^ 

Just  complaint  could  be  made  by  suitors  if  legal  rules  were 
not  derived  from  regular  proceedings  in  which  there  could  be 
discussion,  trials,  and  appeals.  In  the  time  of  Charles  I., 
Pym  complained  of  "  extra-judicial  judgments  and  impositions 
of  the  judges  without  any  causes  before  them,  whereby  they 
have  anticipated  the  judgment  which  is  legal  and  public,  and 
circumvented  one  of  the  parties  of  just  remedies^  in  that  no  ivrit 
of  error  lies,  but  only  upon  judicial  proceedings.^^  ^ 

It  is  well  to  state  at  the    outset  the    difference   between   a 

1  It  has  been  made  a  question  how  far  organized.     Divorce  jurisdiction  was  thus 

the  ecclesiastical  law  of  England  became  made  to  rest  wholly  on  statute.     It  was, 

by  adoption  a  part  of  the  law  of  the  Amer-  however,  held  in  Brinkley  v.  Brinkley,  50 

ican  States.     It  was  believed  in  Burtis  v.  N.  Y.  184,  190,  that  if  by  American  stat- 

Burtis,    Hoi)kins  R.  557,  that  the  English  utes  any  part  of  the  ecclesiastical  jurisdic- 

law   concerning    divorces    and    causes   of  tion  was  given  to  our  courts,  the  settled 

divorce  as  it  existed  while  New  York  was  principles  and  practice  of  those  tribunals 

a  colony,  is  "  chiefly  the  ecclesiastical  and  became  a  guide  for  our  courts, 
not  the  common  law  of  that  country,"  and  2  'Williams  v.  Hagood,  98  U.  S.  72. 

was  no  part  of  the  common  law  which  the  ^  3  Rushworth's  Historical  Collections, 

colony  adopted,  nor  the  State  after  it  was  1135. 


IQ  THE   LAW   OF   PERSONS. 

"  record  "  and  a  "  report. "  A  record  has  been  defined  to  be  an 
authentic  testimony  in  writing  contained  in  rolls  (formerly  of 
parchment)  preserved  in  a  court,  thence  called  a  court  of  record. 
In  these  rolls  are  contained  the  judgment  of  the  court  on  each 
case,  and  all  the  proceedings  previous  thereto. 

It  is,  therefore,  a  history  of  the  case.  Legal  principles, 
though  involved  in  a  judgment,  are  not  explained  or  stated 
in  the  record.  The  report,  on  the  other  hand,  contains  a 
statement  of  the  facts  in  controversy  sufficient  to  elucidate 
the  principle,  usually,  though  not  uniformly,  an  abstract  of 
the  arguments  of  counsel,  and  the  reasoning  and  conclusion 
of  the  court  set  forth  formally  in  an  "opinion."  The  report 
thus  serves  to  explain  the  record.  At  the  same  time  the  record 
may  be  resorted  to  with  a  view  to  test  the  accuracy  of  the  report, 
or  for  the  purpose  of  ascertaining  the  precise  point  involved,  and 
necessary  to  be  decided  in  order  to  dispose  of  the  case. 

It  is  a  general  rule  of  law,  subject  to  important  exceptions, 
that  when  a  case  has  been  adjudicated,  particularly  in  the 
higher  courts,  and  another  case  arises  with  similar  facts 
involving  the  same  principles,  a  like  decision  is  to  be  made.  In 
applying  this  rule  it  should  be  carefully  noted,  whether  the 
facts  in  the  two  instances  arc  substantially  the  same.  The 
absence  or  presence  of  a  fact  either  found  or  not  found  in  the 
former  case,  may  render  the  earlier  decision  inapplicable. 
The  rule  of  law  thus  becomes  so  closely  connected  with  the  facts 
that  it  is  difficult  to  state  it  in  abstract  form,  although  it  is 
true  that  many  elementary  rules  can  be  presented  in  a  precise 
form  so  as  to  have  a  very  wide  application. 

A  distinction  may  be  made  at  this  point  between  a  mere  rule 
of  law  and  a  maxim.  A  rule  prescribes  a  definite  course  of 
action,  as  that  a  deed  must  be  written  on  paper  or  parchment, 
or  that  a  negotiable  note  must  be  payable  in  money  and  not  in 
goods.  A  maxim,  on  the  other  hand,  is  a  generalization  or 
abstract  proposition,  prescribing  no  definite  course  of  action, 
but  is  rather  a  principle  to  which  a  class  of  acts  must  conform. 
Some  of  the  leading  legal  maxims  are  these :  "  So  use  your  own 
as  not  to  injure  another. "^  "No  one  shall  profit  by  his  own 
wrong,"  etc.  They  have  been  well  classified  by  Mr.  Broom  in 
his  work  on  Legal  Maxims.  Maxims  have  had  great  influence 
upon  the  administration  of  justice  in  courts  of  equity.  They 
are  collected  in  the  standard  works  on  equity  jurisprudence. 

^  In  Latin,  Sic utere  tuo,  ut  non alicnuvi     stances  depiecated  the  use  of  maxims,  ex- 
laedas.       A  judge  of  distinction  now  on     cept  in  a  very  cautious  manner, 
tlie  English  Bench  has  in  a  number  of  in- 


THE    SOURCES    OF   THE    LAW.  17 

Recurring  to  the  decisions  of  the  courts,  further  reference 
should  be  made  to  them  considered  as  precedents.  The  general 
subject  of  precedents,  both  in  politics  and  law,  has  been  well  dis- 
cussed by  Dr.  Lieber  in  his  work  on  Legal  and  Political  Herme- 
neutics.^  Here  we  have  only  to  consider  them  as  resorted  to  in 
law.  It  is  essential  to  the  due  administration  of  justice  that 
precedents  should  be  followed  unless  there  is  some  convincing 
reason  to  the  contrary.  It  is  only  in  this  way  that  the  law  can 
be  developed  into  a  science.  By  means  of  this  principle,  a 
system  of  jurisprudence  may  be  made  to  consist  of  a  method- 
ical collection  of  the  principles  involved  in  the  decided  cases. 
Still,  many  authorities  are  overruled  by  later  decisions  as  not 
being  founded  on  solid  grounds,  or  as  highly  inconvenient  in 
practice.  Sometimes  cases  without  being  absolutely  overruled 
are  disapproved,  criticised,  or  limited  in  their  effect,  or  distin- 
guished from  the  case  in  hand.  For  a  knowledge  of  these 
instances,  reference  may  be  made  by  the  student  to  Green- 
leaf's  or  Bigelow's  Overruled  Cases.  Modern  digests  usually 
contain  tables  of  this  class  of  cases,  embracing  all  such  criti- 
cisms as  have  been  made  during  the  period  covered  by  the 
digest. 

It  accordingly  becomes  necessary  to  apply  fixed  rules  with 
the  view  of  determining  the  value  of  a  reported  case.  The 
following  tests  may  be  suggested  as  useful. 

(1)  Inquire  by  what  tribunal  the  case  was  decided,  whether 
upon  argument  before  a  full  court  (also  called  "  in  bank "  or 
"in  banco,"  or  by  the  full  bench),  or  by  a  judge  at  a  trial  with 
a  jury,  etc.  Decisions  made  by  a  judge  with  a  jury  are  termed 
"Nisi  Prius  "  decisions, ^  and  are  in  general  of  but  little  weight, 
though  the  high  reputation  of  particular  judges  sometimes  gives 
them  authority.  They  are  more  frequently  reported  in  England 
than  in  this  country.  ^ 

(2)  Inquire  whether  the  case  was  fully  and  thoroughly  argued 
by  counsel.  The  value  of  a  decision  greatly  depends  upon  the 
preparation  of  the  case  made  by  the  respective  counsel.  It  can 
scarcely  be  expected  that  a  court  perhaps  crowded  with  business 
will  make  an  independent  investigation  of  the  case.  It  is  in 
general  true  that  the  decision  is  of  no  higher  grade  than  the 
argument.     Many  cases  are  overruled  for  this  reason,  as  a  later 

^  3d  ed.,   by  William   G.   Hammond,  plained  in  full  in  Book  III.  of  Blackstone's 

LL.D. ,  St,  Louis,  1880.  Commentaries. 

2  "  iN7.si  Prius"  is  a  technical  term,  ^  Instances  are  the  Eeports  of  Camp- 
derived  from  the  old  writs  in  Latin,  bell,  Espinasse,  Carrington  &  Payne, 
whereby  judges  were  designated  by  the  Carrington  &  Marshman,  Carrington  & 
king  to  hold   the   trial  court.     It  is  ex-  Kirwan,  and  Foster  &  Finlason. 


IQ  THE   LAW  OF   PERSONS. 

and  more  thorough  discussion  shows  the  weakness  of  the  grounds 
on  which  the  overruled  decision  was  placed.  ^ 

(3)  Next  consider  what  judges  held  the  court.  Some  judges 
have  acquired  such  a  high  distinction  for  judicial  ability  that 
their  judgments  have  an  influence  derived  from  their  reputation. 
It  raay.be  in  some  instances  that  a  particular  judge  has  acquired 
a  great  reputation  for  acquaintance  with  a  special  branch  of  the 
law.  This  fact  makes  his  decision  of  high  value,  and  gives  it 
much  weight  with  other  courts. 

(4)  The  next  inquiry  is  as  to  the  grade  of  the  court  disposing 
of  the  case,  whether  it  be  inferior  or  a  court  of  last  resort. 
Referring  to  the  English  courts  for  illustration,  it  may  be  men- 
tioned that  there  is  in  the  outset  a  hearing  by  a  court  in  the 
first  instance,  then  a  review  by  an  appellate  court,  and  perhaps 
a  further  review  by  a  still  higher  and  final  appellate  court, 
viz.,  the  House  of  Lords.  Similar  schemes  are  adopted  in  the 
respective  States  of  this  country  as  well  as  in  the  United  States 
courts.  The  courts  may  thus  be  classified  into  inferior  and 
superior  courts.  As  each  of  these  courts  has  or  may  have 
reported  decisions  of  its  own,  this  distinction  in  tribunals  must 
be  attended  to.  Due  subordination  requires  that  the  decisions 
of  the  appellate  court  should  control  those  of  the  inferior  court. 
Accordingly  the  decisions  of  the  Court  of  Appeals  in  New  York 
would  be  controlling  on  the  Supreme  Court,  a  subordinate  tribu- 
nal. This  is  to  some  extent  an  arbitrary  rule,  and  would  prevail, 
notwithstanding  that  it  could  be  shown  by  argument  that  the 
Supreme  Court  was  right.  The  decision  of  the  appellate  court 
by  its  superior  grade  binds  the  inferior  court  as  a  matter  of  mere 
authority. 

(5)  The  next  inquiry  is  as  to  the  intrinsic  merits  of  the 
report  itself.  The  ordinary  and  regular  course  is  for  a  reporter 
to  prepare  a  syllabus  to  be  prefixed  to  his  report  containing 
the  substance  of  the  principles  decided,  as  well  as  a  statement 
of  the  facts  to  which  the  rule  was  applied.  A  reporter  may  and 
often  does  err,  both  in  stating  the  points  actually  decided,  and 
in  omitting  to  notice  some  of  the  propositions  passed  upon.  The 
syllabus  is  not  to  be  trusted  except  as  an  index  to  the  report, 
which  should  itself  be  consulted. 

There  is  a  special  source  of  error  in  the  older  reports.     The 

1  Important  cases  in  the  early  reports  courts,  and  the  rule  then  laid  down  was 

were  only  decided  after  great  and  exhaus-  never  disturbed  afterwards,  though  vehe- 

tive  discussion.    In  the  famous  case  known  mently  assailed  from  time  to  time  by  some 

as  "Shelley's  Case"  the  discussion  occu-  of  the  ablest  counsel  in  England, 
pied  many  days  before  a  series   of  high 


THE   SOURCES   OF   THE   LAW.  19 

reporters  took  notes  then  of  what  the  judges  said  from  the  bench, 
and  the  art  of  shorthand  writing  being  not  acquired  at  all,  or 
only  imjierfectly,  the  report  is  frequently  inaccurate.  There  are 
in  some  instances  several  contemporaneous  reports  which  may 
be  resorted  to  for  comparison.^  The  courts  in  this  country  at 
the  present  time,  for  the  most  part,  prepare  written  opinions  and 
hand  them  to  the  reporter,  whereby  this  source  of  error  is  in  the 
main  avoided. 

(6)  Distinguish  between  what  is  decided  and  what  is  said 
by  way  of  argument  or  illustration.  Remarks  of  this  latter 
kind  dropped,  as  it  were,  by  the  way,  are  called  dicta  or  obiter 
dicta,  and  have  no  force  as  precedents,  though  in  course  of  time 
they  may  ripen  into  authority.  These  dicta  are  commonly 
indicated  in  the  report  by  the  word  "  Semble  "  (Norman-French), 
meaning  "  it  seems, "  which  is  the  modern  equivalent  used. 
The  reporter  indicates  that  the  point  has  been  actually  decided 
by  the  expression,  "^eZtf. " 

(7)  There  is  a  distinction  between  cases  considered  on  the 
one  hand  as  binding  upon  a  court  and  on  the  other  as  arguments 
upon  which  another  decision  may  be  based.  In  the  one  case  the 
court  having  a  case  in  hand  is  controlled  though  not  convinced ; 
in  the  other,  the  court  regards  the  prior  decision  simply  as  an 
element  in  reaching  a  conclusion.  On  this  point  some  rules  are 
to  be  noted. 

Rule  1. — The  decision  of  an  appellate  court  is  in  general  bind- 
ing on  a  subordinate  court  as  establishing  a  principle  for  its 
action  when  a  similar  state  of  facts  is  presented.  This  rule  is 
not  applied  to  all  appellate  courts,  but  only  to  those  having  the 
power  to  review  the  decisions  of  the  subordinate  court  in  ques- 
tion. For  example,  the  tribunal  in  England  called  the  "Judicial 
Committee  of  the  Privy  Council  "  is  the  final  court  of  Appeal 
from  the  decisions  of  certain  tribunals,  but  not  from  the  judg- 
ments of  the  Queen's  Bench,  which  is  subordinated  to  the  House 
of  Lords.  Accordingly  it  has  been  ruled  that  the  decisions  of 
the  Judicial  Committee  are  not  binding  on  the  Queen's  Bench, 
though  they  are  to  be  regarded  with  the  greatest  respect.  ^ 

1  A  work  called  "  Repertorium  Juridi-  380.  It  has  been  further  said  that  though 
cum  "  is  useful  in  finding  the  older  con-  they  may  not  be  theoretically  binding,  it 
temporaneous  reports.  Published  by  B.  is  highly  iindcsirahle,mcasQfi  oiraaxcuniWa 
Nutt  in  1742.  It  begins  with  Edward  and  admiralty  law  coining  from  colonies 
I.,  and  is  said  to  contain  forty  thou-  professedly  following  the  English  law,  that 
sand  cases.  The  object  of  the  index,  as  there  should  be  any  conflict  of  decision 
stated  in  the  preface,  is  to  find  all  the  between  that  court  and  the  court  of  ap- 
books  in  which  the  same  case  is  printed,  peal  for  other  cases.  The  City  of  Chester, 
though  by  different  names.  L.  R.  9  P.  D.  182,  207. 

2  Leask  v.  Scott,  L.  R.  2  Q.  B.  D.  376, 


20 


THE   LAW    OF   PERSONS. 


R„lc  2  —  A  decision  is  also  in  general  binding  on  the  very 
court  which  renders  it.  If  this  were  not  so,  the  law  would  be 
uncertain  and  scarcely  worthy  of  the  name  of  a  science.  This 
doctrine  is  followed  with  great  rigor  by  the  English  House  of 
Lords,  which  only  in  very  extreme  cases  refuses  to  follow  a 
former  decision,  preferring  to  leave  the  rule,  if  unsound,  to  be 
remedied  by  Parliament.  Upon  this  principle,  a  judgment  of  a 
lower  court  is  held  to  be  affirmed  when  there  is  an  equal  division 
of  opinion  among  the  judges  of  the  appellate  court. ^ 

The  courts  in  this  country  are  not  so  rigorous.  The  Supreme 
Court  of  the  United  States  has  in  a  number  of  instances  aban- 
doned a  rule  once  established  by  it,  and  announced  a  different 
one,  and  the  same  is  true  of  State  courts. 

Still  the  general  rule  remains,  that  a  case  once  recognized  as 
law,  and  as  a  part  of  the  jurisprudence  of  the  State,  though 
decided  by  a  subordinate  court,  should  not  be  overruled  even 
by  an  appellate  court  without  good  reason.  A  rule  on  this 
subject  has  been  recently  stated  in  the  following  terms :  "  There 
are  two  classes  of  cases  which  must  be  distinguished.  Where 
an  old  case  is  contrary  to  the  principles  of  the  general  law,  the 
court  of  appeal  ought  not  to  shrink  from  overruling  it  even  after 
a  considerable  lapse  of  time.  But  when  an  old  decided  case 
has  made  the  law  on  a  particular  subject,  the  court  of  appeal 
ought  not  to  interfere  with  it,  because  people  have  considered 
it  as  establishing  the  law,  and  have  acted  upon  it."^ 

The  difference  between  the  position  of  the  House  of  Lords  and 
that  of  the  Supreme  Court  of  the  United  States  in  retracing  a 
step  once  taken  should  be  noted.  If  the  House  of  Lords  adheres 
to  a  wrong  decision  once  made,  the  inconvenience  sustained  by 
it  can  be  remedied  by  act  of  Parliament.  But  if  the  Supreme 
Court  has  put  an  erroneous  construction  upon  the  United  States 
Constitution  and  adheres  to  it  after  the  error  appears,  it  cannot 
be  rectified  except  by  an  amendment  to  the  Constitution,  which 
it  is  almost  impossible  to  obtain.  This  fact  might  lead  the  court 
in  a  plain  case  to  overrule  a  former  decision  which  other- 
wise might  produce  lasting  evils  in  the  administration  of  public 
affairs.  Assuming  that  this  line  of  reasoning  is  justifiable,  it 
should  be  resorted  to  only  in  urgent  cases  where  the  conse- 
quences of  overturning  the  former  decision  would  be  plainly  less 

1  The  rule    then    applied   is,    Semper  vided  vote  the  judgment  of  a  lower  court 

prmsumiiur  pro   negante,    or  '"he    who  that  there  cannot  at  common  law  be  a  valid 

holds   the  affirmative  must  establish  it."  marriage  without  a  priest. 

An  illustration  is  The  Queen  v.  Millis,  10  2  per  Jessel,  M.  R.,  in  Smith  v.  Keal, 

CI.  &  F.  534,  affirming  by  an  equally  di-  L.  R.  9  Q.  B.  D.  340,  352. 


THE   SOURCES   OF   THE   LAW.  21 

harmful  than  the  effect  of  the  decision  itself.  It  has  been  held 
that  a  decision,  not  in  harmony  with  previous  decisions,  overrules 
those  with  which  it  is  in  conflict,  whether  these  are  commented 
on  or  not.i 

Rule  3.  —  Decisions  of  courts  of  sister  States  are  not  authority, 
but  merely  arguments.  The  same  is  true  of  English  decisions, 
unless  they  have  become  part  of  the  common  law  of  the  State 
by  adoption,  and  also  of  decisions  of  the  Supreme  Court  of  the 
United  States,  upon  questions  not  arising  out  of  the  Constitu- 
tion of  the  United  States,  or  of  the  treaties  and  laws  made  under 
it.  The  rule  also  applies  to  co-ordinate  courts  in  the  same  State 
or  country. 

Where  the  English  law  is  adopted  in  a  particular  State,  as  of 
a  particular  day,  e.  g.,  April  19,  1775,  (as  it  is  in  New  York,) 
the  decisions  of  the  English  courts  prior  to  that  time  become 
part  of  the  adopted  Imv,  and  are  made  binding  on  the  courts  by 
the  act  of  adoption,  though  subject  to  change  by  the  legislature. 
Later  judicial  decisions  in  England  are  substantially  made  by 
the  courts  of  a  foreign  state,  and  are  simply  entitled  to  respect 
according  to  their  merits. 

A  similar  rule  prevails  in  England  as  to  the  value  of  American 
decisions.  It  has  been  lately  said  there  in  substance  that  the 
English  courts  do  not  regard  American  decisions  as  authorities, 
but  only  as  guides.  They  will  have  regard  to  the  reasons  given 
by  American  judges,  so  far  as  they  do  not  conflict  with  decided 
law  in  England.  2 

Jiule  4. —  A  Federal  decision  is  sometimes  binding  in  a  State 
court  as  authority ;  at  other  times  only  as  an  argument.  The 
United  States  Constitution  provides  ^  that  the  Constitution  itself, 
the  laws  made  in  pursuance  of  it,  and  the  treaties  made  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of 
the  land,  and  that  the  State  judges  shall  be  bound  by  them. 
The  Supreme  Court  of  the  United  States  is  the  final  interpreter 
of  the  Constitution  and  the  laws  made  under  it.  It  follows  that 
its  decisions  upon  these  subjects  are  binding  on  the  highest  State 
courts. 

In  other  cases,  the  decisions  of  the  United  States  courts  are  no 
more  than  guides  or  arguments  in  the  State  courts.  For  example, 
the  disposition  of  a  question  of  commercial  law  will  be  treated 
with  respect  in  discussion  in  a  State  court,  but  in  the  end  will 
not  necessarily  be  followed.     In  this  way  it  has  frequently  hap- 

1  Asher  v.  Texas,  128  U.  S.  129.  ^  Art.  VI. 

2  Cory  V.  Burr,  L.  K-  9  Q.  B.  D.  463, 

469,   472. 


22  THE   LAW   OF  PERSONS. 

pened  that  the  decisions  of  the  Supreme  Court  of  the  United 
States  have  been  opposite  to  those  of  a  State  court,,  each  court 
persisting,  on  a  reconsideration  of  the  question  involved,  in  its 
special  view.^ 

The  effect  of  State  decisions  in  the  Federal  courts  is  a  some- 
what complicated  subject  growing  out  of  the  delicate  illations  of 
the  States  to  the  Federal  government.  Many  cases  go  into  the 
United  States  courts  solely  on  the  ground  of  the  different 
citizenship  of  the  respective  parties  to  the  action.  It  would 
make  the  jurisprudence  of  the  country  intricate  and  highly 
uncertain,  if  in  all  such  cases,  the  respective  tribunals  should 
take  independent  and  perhaps  conflicting  views,  so  that  a  right 
which  was  recognized  in  the  State  court  should  be  denied  in 
the  Federal  Court  or  vice  versd.'^  An  act  of  Congress  of  1789  ^  (a) 
provided  "  that  the  laws  of  the  several  States  except  where  the 
Constitution,  treaties,  or  statutes  of  the  United  States  shall 
otherwise  rec^uire  or  provide,  shall  be  regarded  as  rnles  of  deci- 
sion in  trials  at  common  law  in  the  courts  of  the  United  States, 
in  cases  where  they  apply." 

Under  this  statute,  the  rights  of  pei-sons  and  rnles  of  property 
as  settled  in  the  States  are,  in  general,  guides  to  the  courts  of 
the  United  States  in  legal  controversies.^  The  general  object  of 
the  provision  was  to  make  the  rules  of  decision  in  the  courts 
of  the  United  States  the  same  as  those  of  the  States,  though 
subject  to  some  exceptions  to  be  hereafter  stated.^  This  statute 
does  not  adopt  by  anticipation  the  changes  in  process  and 
proceedings  which  may  from  time  to  time  take  place  in  the 
States.^ 

It  is  a  general  rule  that  the  Federal  courts,  in  interpreting 
and  construing  the  statutes  and  constitutions  of  States,  follow 
any  settled  meaning  placed  upon  them  by  the  highest  court  of 
the  State  where  they  are  enacted  or  adopted.  As  to  statutes^ 
this  rale  is  announced  in  a  great  number  of  decisions.' 

1  Mnny  cases  of  this  kind  are  collected  ^  Qi^_  qq^  §  34^ 

in  Holt's  Coneuxreiiit  JnrisdictioH  wf  Xh&         ^  Umted  States   v.    Wonsoa,    1   GalL 

Federal   and  State  Courts.     (New   York,  5,  18. 

1888.)  5  MeNiel  v.  HoForook,  12  Pet.  84. 

2  In  Knowlton  v.  Congress  &  Empire  ^  Bank  of  United  States  v.  Halstead, 
Spring  Co.,  57  N.  Y.  518,  the  Xew  York  10  Wheat.  53. 

;>iipellate  court  decided  a  question,  where-  '^  Mutual  Assurance  Society  v^  Watts, 

7ipon  the  case  was  removed  into  a  Faieral  1  WJjeat.  279  ;  Shipp  w.  Miller's  Heirs,  2 

court,  and  the  Supreriie  Court  of  the  United  Id.   316^    Rowan   v.    Runnells,    5   How. 

States   declared  an    opposing  rule.     No-  U.   S.    1S4,    139  ;    Parker  v.   Kane,   22 

Federal   question   was   involved.     Spring  Id.  1. 
Company  v.  Knowlton,  103  U.  S.  49. 


(«)  Rev-  St.  U.  S.  §  721. 


THE   SOURCES   OF   THE   LAW.  23 

So  it  has  been  held  that  if  the  highest  judicial  tribunal  of  a 
State  adopts  new  views  on  the  construction  of  a  State  statute, 
and  reverses  its  former  decisions,  the  Supreme  Court  of  the 
United  States  will  follow  the  later  adjudication.^  This  rule 
rests  upon  the  theory  that  the  judicial  department  of  a  govern- 
ment is  the  appropriate  organ  for  construing  the  legislative 
acts  of  that  government,  and  that  the  construction  given  by  the 
courts  of  a  State  to  a  statute  of  that  State  is  to  be  received  as 
correct,  unless  the  statute  comes  in  conflict  with  the  Constitution, 
laws,  or  treaties  of  the  United  States.  The  cases  sustaining  this 
general  proposition  are  extremely  numerous.  A  few  of  the  later 
ones  are  cited  in  the  note.^ 

This  general  rule  is  subject  to  some  exceptions  now  to  be 
stated.^ 

(1)  When  a  State  statute  is  of  recent  origin,  and  no  deci- 
sion upon  its  meaning  has  been  rendered  by  the  State  courts, 
its  construction  is  an  open  question.'* 

(2)  The  opinion  of  a  State  court  is  not  controlling  unless  it 
was  necessary  to  construe  the  statute  in  order  to  reach  a  deci- 
sion. In  other  words  the  mere  dictum  of  the  State  court  is  not 
binding  on  the  Federal  court.  ^ 

(3)  The  Federal  courts  will  not  follow  the  decisions  of  the 
State  courts  if  in  so  doing  they  would  infringe  on  the  Consti- 
tution of  the  United  States.'' 

(4)  The  rules  as  to  remedies  in  the  United  States  courts  are, 
particularly  in  cases  of  equity  jurisprudence,  based  upon  general 
principles  of  law  as  established  and  defined  in  England.'^  (a) 

1  Greene  v.  Lessee  of  Neal,  6  Pet.  291  ;  ^  On  the  general  subject  of  exceptions 
LeiEngwill  v.  Warren,  2  Black,  599.  and  qualifications  refei-ence  is  made  to  the 

2  Tioga  R.  B.  Co.  v.  Blossburg  &  Cor-  case  of  Pease  v.  Peck,  18  How.  U.  S.  595. 
ning  R.  R.  Co.,  20  Wall.  137  ;  Townsend  *  Gardner  v.  Collins,  2  Pet.  58. 

V.  Todd,  91  U.  S.  452  ;  Township  of  Elm-  &  Carroll  v.  Lessee  of  Carroll,  16  How. 

wood  V.  Marcy,  92  U.   S.   289  ;  Peik  v.  U.  S.  275. 

Chicago  &  Northwestern  R.   R.    Co.,    94  «  Rowan  v.  Runnels,  5  How.  U.  S.  134  ; 

U.  S.  164  ;  Amy  v.   Dubuque,   98  U.  S.  State   Bank   of  Ohio  v.    Knoop,    16    Id. 

470  ;   County  of  Schuyler  v.  Thomas,  98  369. 

U.  S.  169  ;  United  States  v.  Fox,  94  U.  S.  ^  gee  Rules  in  Equity  ordained  by  the 

315.  Supreme  Court  of  the  United  States. 


(a)  In  the  Circuit  and  District  Courts  tice   of   the   Court   of   King's   Bench   in 

of  the  United  States  the  practice  in  civil  England  is  the  basis  of  the  common-law 

causes  other   than  equity  and  admiralty  practice   in   the   United    States   Supreme 

causes  is  made  to  conform,  as  near  as  may  Court,     Supreme  Couit  Rule  3.     In   the 

be,  to  that  of  the  State  in  which  the  courts  United    States  Circuit  Court   of  Appeals 

are  held.     Rev.  St.  U.  S.  §  914.     As  to  the  practice  is  the  same  as  in  the  Supreme 

remedies  in  common-law  causes  in  these  Court  as  far  as  applicable.     Rule  8,  U.  S. 

courts,  see  §§  915,  916.     The  former  prac-  Circuit  Court  of  Appeals. 


24  THE   LAW   OF   PEKSONS. 

(5)  Rules  of  evidence  follow  the  law  of  the  State  where  the 
Federal  court  is  held.^ 

In  the  construction  of  State  constitutions  it  is  a  general  rule 
that  the  Federal  courts  will  follow  the  highest  court  of  a  State, 
assuming  that  no  conflict  is  claimed  with  the  United  States 
Constitution.  2 

It  may  be  stated,  however,  by  way  of  exception,  that  they  may 
follow  a  settled  construction  existing  when  a  contract  in  ques- 
tion was  made,  and  reject  a  more  recent  decision  by  the  highest 
court  of  the  State.  The  theory  on  which  this  view  rests  is,  that 
the  State  court's  construction  entered  into  the  contract  when  it 
was  made,  and  thus  formed  part  of  it.^ 

In  determining  the  title  to  land  or  other  real  property,  the 
courts  of  the  United  States  are  bound  to  apply  the  laws  of  the 
State,  including  the  decisions  of  the  courts,  in  which  the  court 
is  sitting  and  the  land  is  situated.*  So  it  happens  that  where 
any  principle  of  law  establishing  a  rule  of  real  property  has 
been  settled  in  the  State  courts,  the  same  rule  will  be  adopted 
in  the  Federal  courts.^  The  powers  of  the  United  States  courts 
to  administer  equity  jurisprudence  are  conferred  by  the  United 
States  Constitution,  and  are  not  at  all  dependent  npon  the 
States  or  upon  State  legislation.  So  the  Supreme  Court  of  the 
United  States  is  not  bound  by  a  decision  of  a  State  court  upon  a 
point  of  equity  jurisprudence.^ 

In  cases  involving  questions  of  commercial  law  and  general 
jurisprudence,  the  Federal  courts  do  not  regard  the  decisions  of 
the  State  courts  as  authoritative,  but  at  most  only  as  guides. 
In  many  instances,  they  have  declined  to  follow  them.  Such 
questions  are  deemed  to  be  cases  of  general  commercial  law,  in 
which  every  court  is  at  liberty  to  follow  its  own  opinion, 
according  to  its  own  judgment  of  the  weight  of  authority  and 
the  soundness  of  principle.'^     This  is  equally  true  of  a  commer- 

1  R5'an  v.  Bindley,  1  Wall.  66.  Amoskeag    Bank    v.    Ottawa,    105   U.  S. 

2  Nesmith  v.  Sheldon,  7  How.   U.  S.     667. 

812;  Gelpcke  i;.  City  of  Dubuque,  1  Wall.  3  State    Bank  of  Ohio   v.    Knoop,  16 

175  ;  Town  of  South  Ottawa  v.  Perkins,  How.  U.  S.  369;  Gelpcke  v.  City  of  Du- 

94  U.  S.  260.      Under  this  principle  the  Inique,  1  Wall.  175  ;  Taylor  v.  Ypsilanti, 

judgment  of  the  highest  court  of  a  State  as  105  U.  S.  60. 

to  the  validity  of  a  State  statute,  as  com-  *  Waring  v.  Jackson,  1  Pet.  570  ;  Miles 

pared    with    the    State    Constitution,   is  v.  Caldwell,  2  Wall.   35. 

binding  upon  the  Federal  courts.     County  ^  Suydam    v.    Williamson,     24     How. 

of  Leavenworth  v.   Barnes,  94  U.  S.  70  ;  U.  S.  427. 

Railroad  Company  v.   Georgia,   98  U.   S.  6  Neves    v.    Scott,     13    How.    U.    S. 

359.     It  is  not  material  whether  the  result  268. 

be  that  the  State  statute  will  be  thus  ad-  ^  Robinson  v.  Commonwealth  Ins.  Co., 

judged  valid  or  void  by  the  United  States  3    Sumn.    220  ;    Gloucester    Ins.     Co.    ik 

courts.     Hall  v.  Be  Cuir,  95  U.  S.  485  ;  Younger,   2  Curt.   C.   Ct.  322  ;   Swift   v. 


THE   SOUKCES   OF   THE   LAW.  25 

cial  question  growing  out  of  the  application  of  a  statute,  where 
some  general  principle  is  involved  not  dependent  upon  the 
statute.  ^ 

Before  closing  this  branch  of  the  subject,  reference  should  be 
made  in  more  detail  to  some  peculiarities  of  the  English 
reports  before  the  American  Revolution. 

These  reports  are  only  consulted  occasionally.  Much  of  the 
learning  contained  in  them  has  become  obsolete.  The  most 
venerable  of  them  is  the  collection  termed  the  Year  Books. 
These  are  for  the  most  part,  so  far  as  printed,  in  folio  form  and 
are  in  the  Norman  French,  now  an  obsolete  language.  The  cases 
were  reported  regularly  from  year  to  year  by  reporters  paid  by 
the  government.  This  course  was  adopted  for  more  than  two 
centuries.  All  of  these  books  have  not  been  printed.  Some 
of  the  earliest  (a.d.  1292-1.307)  have  recently  been  translated 
and  printed  in  modern  form  in  England  under  the  direction  of 
the  Master  of  the  Rolls.  These  books  give  an  interesting  view 
of  the  rise  and  growth  of  English  law,  and  are  worthy  of  the 
attention  of  the  legal  reader.  A  case  in  point  in  them  may 
still  be  cited  as  authority.  Instances  are  found  in  the  N^ew 
York  cases  of  Curtis  v.  Hubbard, ^  and  Althorf  v.  Wolfe. ^ 
After  the  Year  Books  were  discontinued  in  the  reign  of  Henry 
VIII.,  the  system  of  reporting  was  left  open  to  the  public  at 
large.  Many  worthless  reports  were  published,  while  others  of 
great  excellence  were  supplied  to  the  profession.  One  marked 
feature  of  this  voluntary  system  was  the  great  and  undue  multi- 
plication of  contemporary  reports.  This  method  led  to  such 
serious  evils  that  in  the  year  1866  in  England  the  series   known 

Tyson,  16  Pet.  1  ;  Town  of  Venice  17.  Mur-  decisions    involving   the   same   principle, 

dock,  92  U.  S.  494.  The  Supreme  Court  of  the  United  States 

1  Town  of  Venice  v.   Murdock,  supra,  held,  in  a  case  between  the  same  parties 

This  subject  is  one  of  much  difficulty,  and  involving  the  same  state  of  facts,  that  it 

ajiparently  not  yet  thoroughly  worked  out.  would  follow  the  State  line  of  decisions,  on 

The   recent   case   of  Bucher   v.    Cheshire  the  ground  that  the  law  was  one  of  a  Zccfli 

R.  R  Co.,  125  U.  S.  555,  shows  the  per-  cAararfcr,  having  a  well-established  judicial 

plexities  of  the  subject.      A  law  of  Massa-  construction,  (see    the    discussion    of  the 

chusetts   has   for  a    long    time     (though  general   subject   on   pages    582-584.)      A 

modified  recently)  provided  that,  "whoever  well-digested  statement   of    the   cases  in 

travels  on  the  Lord's  Day,  except  for  ne-  which  the  United  States  courts  will  follow 

cessity  or  charity,  shall   be  punished  by  the   State   courts,  and    also   those  where 

a  fine  not  exceeding  ten   dollars."     Gen.  they  will  exercise    an  independent  judg- 

Stat.   ch.  84,    §    2.       The   Massachusetts  ment  of  their  own,  is  to  be  found  in  the 

court,  in  the  construction  of  this  statute,  case  of  Burgess  v.    Seligman,    107  U.  S. 

held  that  it  was  a  bar  to  an  action  by  a  33-35.       A  great   number  of   authorities 

passenger  on  a  railroad,  not  travelling  for  bearing  upon  the  subject  are  to  be  found 

necessity   or  charity,  for  an  injury  occa-  in  a  note  at  the  foot  of  p.  34. 
sioned  by  the  negligence  of  the  company.  2  4  Hill,  437. 

This  ruling  followed  a  long  course  of  State  3  22  N.  Y.  355. 


26  THE    LAW   OF   FEESONS. 

as  the  "Law  Reports"  was  established.  This  series  is  prepared 
under  the  direction  of  a  council  of  men  of  high  official  and  legal 
standing,  including  the  attorney-general  and  solicitor-general, 
and  has  a  great  and  deserved  reputation.  ^ 

Reporting  in  the  United  States  is  in  the  main  done  by  official 
reporters.  There  are,  however,  in  some  of  the  States,  — notably 
New  York,  —  publications  by  private  persons,  which  are  cited 
with  approval  by  the  courts. ^ 

In  addition  to  the  reports,  resort  may  be  had  for  legal  infor- 
mation to  treatises,  digests,  abridgments,  etc.  For  the  most 
part,  these  should  be  regarded  rather  as  means  of  consulting 
the  reports.  As  a  rule,  when  the  treatise  and  report  conflict, 
the  latter  is  to  be  preferred.  When  the  view  of  a  text-writer 
is  adopted  by  a  court,  it  is  not  because  it  is  itself  authority,  but 
on  account  of  its  intrinsic  merit.  Some  works  have  come  in 
this  way  to  be  highly  esteemed  and  frequently  cited.  Among 
others  may  be  mentioned  Coke's  Commentaries  upon  Littleton, 
Coke's  Listitutes,  Blackstone's  Commentaries,  Kent's  Commen- 
taries, Story's  Commentaries,  etc. 

A  word  should  be  added  as  to  digests  and  abridgments.  A 
number  of  these,  published  long  ago,  have  become  classic,  and 
are  cited  as  if  they  were  authorities.  An  abridgment  and 
digest  do  not  materially  differ,  though  in  some  instances  the 
former  is  more  detailed  than  the  latter.  The  course  of  the 
author  in  each  case  is  to  arrange  his  material  under  appropriate 
general  divisions  with  subordinate  heads,  and  to  refer  to  the 
volume  and  page  of  a  report  substantiating  his  proposition. 
The  older  writers  of  this  class  are  Statham,  Brooke,  Dyer, 
Comyns,  Viner,  and  Bacon.  The  leading  modern  English 
digests  (for  the  word  "  abridgment "  is  not  used  by  modern 
writers)  are  Harrison  and  Fisher,  Mews  with  associates,  Chitty, 
and  the  Digest  of  the  Law  Reports.^  Mews's  work  is  of  great 
merit.  It  commences  with  1884,  with  annual  continuations 
down  to  and  including  1892.  Chitty's  Digest  contains  equity 
cases  and  bankruptcy  cases  in  all  the  courts.  The  first  volume 
was  published  in  1883,  and  the  last  in  1889.  The  Law  Reports 
Digest  commences  with  1865,  and  is  continued.  There  is  also  a 
useful  digest  of  admiralty  cases  by  Pritchard.  In  this  country 
the  United  States  Digest  may  be  referred  to,  containing  a  first 

1  Further  details  on  the  suhject  of  re-  series  of  65  volumes,  and  Abbott's  Re- 
porting will  be  found  in  Wallace  on  ]iorts,  under  the  titles  of  "Practice  Re- 
Keporters.     See  also  The  Lawyer's  Refer-     ports,"  and  "  New  Cases." 

ence  Manual, — an  excellent  and   highly  ^  A  very  useful  edition  of  Harrison  & 

useful  work,  by  Charles  C.  Soule  (1884).       Fisher  has  been  pnldished  by  E.  A.  Jacob, 

2  Instances  are   Barbour's   Reports,   a    Esq.,  of  the  New  York  Bar. 


THE   SOUliCES   OF   THE   LAW.  27 

series  down  to  1870,  with  a  table  of  cases  and  annual  continua- 
tions commencing  with  1870.  There  are  also  digests  in  nearly 
every  State  of  the  decisions  of  its  own  courts. 

It  is  of  great  consequence  to  a  student  to  become  familiar 
with  these  works,  and  with  the  best  modes  of  consulting 
them,  as  they  are  almost  indispensable  helps  in  ascertaining 
what  decisions  have  been  made  upon  the  points  which  may 
happen  at  the  time  to  engage  his  attention. 

The  subject  of  the  influence  of  later  decisions  upon  earlier 
ones  now  requires  more  detailed  consideration.  The  line  of 
inquiry  is,  how  far  has  tlie  later  decision  impaired  or  destroyed 
the  technical  value  of  the  earlier  one,  considered  as  a  prece- 
dent. A  decision  may  thus  be  reversed,  overruled,  questioned, 
limited,  or  distinguished.  Again,  if  satisfactory,  it  may  be  re- 
affirmed, approved,  or  followed.  These  various  terms  should  be 
explained. 

A  decision  is  said  to  be  "  reversed  "  when  the  case  has  been 
removed  hy  cqrpeal  from  a  lower  to  a  higher  court,  and  has  in 
that  way  been  overturned  and  held  for  nought.  It  is  "over- 
ruled "  when  the  principle  on  which  it  proceeds  is  declared  to 
he  unsound  in  law,  and  not  to  be  followed.  The  decision  itself, 
however,  still  remains.  Thus  a  New  York  court  may  overrule 
a  Massachusetts  decision,  though  it  cannot  reverse  the  judgment. 
A  decision  is  said  to  be  "  questioned "  when  some  doubt  is 
expressed  as  to  its  soundness.  It  may  thus  be  questioned  in 
a  number  of  later  cases,  and  finally  overruled.  A  decision  is 
said  to  be  "limited"  when  its  principle  is  expressed  in 
broader  terms  than  the  case  requires,  and  it  is  confined  to  the 
exact  rule ;  and  it  is  "  distinguished  "  when  it  is  not  disapproved, 
but  shown  to  be  inapplicable  to  the  facts  of  the  case  in  hand. 
The  word  "  distinguished  "  is  sometimes  an  euphemism,  and  is 
employed  where  the  former  decision  is  really  unsatisfactory. 
The  same  court  thus  frequently  distinguishes  one  of  its  own 
earlier  decisions  from  a  later  one,  when  it  is  not  quite  ready  to 
overrule  the  former.  A  case  is  said  to  be  "  followed  "  when  the 
later  case  simply  yields  to  its  authority.  The  word  "  approved  " 
is  a  stronger  term,  and  indicates  satisfaction  with  the  former 
decision.  There  are  two  main  streams  of  thought  in  courts  as 
to  former  decisions:  one  is  the  tendency  to  follow  principles, 
or  in  other  words,  to  adopt  the  results  of  logical  thinking ;  the 
other  is  to  submit  to  authority.  The  conflict  between  these  ten- 
dencies leads  to  the  distinctions  that  have  been  noticed.  Cases 
that  have  long  withstood  assaults,  and  have  been  finally  over- 
ruled, produce  a  profound  effect  upon  the  law,  as  they  weave 


28  THE   LAW   OF   PERSONS. 

themselves  into  its  history,  and  cannot  be  overlooked  or  for- 
gotten. Their  main  value  to  the  student  is  to  know  them  in 
order  to  avoid  them. 

DIVISION  II.  —  Statute  Law. 

1.  Preliminary.  —  The  theory  of  statute  law  is  altogether 
diverse  from  that  of  the  common  law.  The  great  and  funda- 
mental distinction  is,  that  while  the  common  law  can  only  be 
announced  by  the  judiciary  in  the  course  of  a  legal  controvers}^ 
and  then  only  as  an  assumed,  existing  rule,  governing  the  matter 
in  hand,  the  statute  law  can  be  generated  at  any  moment  at  the 
pleasure  of  the  legislature,  and  without  reference  to  any  existing 
rule.  The  common  law  has  an  historical  development.  The 
statute  law  may  be  something  novel,  alien  to  the  habits  and  cus- 
toms of  the  people,  and  wholly  arbitrary.  It  cannot  be  worked 
out  by  reasoning,   but  must  be  accepted  as  a  fact. 

Statutes  are  enacted  in  England  by  Parliament ;  in  the  United 
States  by  Congress  and  the  legislatures  of  the  States  and 
Territories. 

There  is  an  important  distinction  between  Parliament  consid- 
ered as  a  legislative  body,  and  Congress.  In  the  case  of  Parlia- 
ment, the  legislative  power  is  vested  in  the  King  or  Queen,  the 
House  of  Lords,  and  the  House  of  Commons ;  in  the  case  of 
Congress  the  legislative  power  is  by  the  terms  of  the  Constitution 
vested  exclusively  in  the  Senate  and  the  House  of  Represen- 
tatives.^ "While  the  President  of  the  United  States  does  not 
participate  in  the  legislative  power,  he  has  a  check  upon  its 
exercise  by  means  of  the  veto. 

Contrasting  the  power  of  Congress  to  make  laws  with  that  of 
a  State  legislature,  there  is  an  important  distinction  depending 
on  the  origin  of  their  authority  and  the  mode  in  which  it  is 
vested.  Congress  derives  its  whole  power  from  a  written 
instrument,  viz.,  the  United  States  Constitution.  If  a  power 
is  not  found  there  in  express  terms  or  by  reasonable  implication, 
it  does  not  exist.  This  rule  has  no  application  to  a  State  legis- 
lature, which  does  not  derive  its  power  from  a  written  instru- 
ment, but  rather  by  adoption  by  the  people  of  the  rules  of  the 
common  law.  It  is  accordingly  assumed  to  possess  all  the 
powers  of  the  English  Parliament,  except  so  far  as  it  may  be 
deprived  of  them  by  the  provisions  of  the  constitution  of  the 
State  or  of  the  United  States. ^ 

1  Art.  I.  §  1.  Butler  v.  Palmer,  1  Hill,  324  ;  Bloodgood 

2  People  V.  Morrell,    21  Weiul.    563  ;     v.   Mohawk,    &c.    R.    E.    18   Wend.    9  ; 


THE   SOURCES    OF   THE   LAW.  29 

Statutes  are  either  public  or  private,  declarative  or  remedial, 
penal  or,  in  contrast  with  penal,  remedial  in  another  sense. 

A  statute  is  said  to  be  public  when  it  affects  the  community 
or  a  class  of  persons.  It  is  private  when  it  affects  a  single 
person,  and  is  in  the  nature  of  an  exception  to  a  general  rule. 
A  private  statute  may  be  in  fact  a  contract  between  parties,  one 
of  whom  is  sometimes  the  State.  In  such  a  case  if  it  impose 
upon  a  person  a  duty  not  relating  to  the  public  interest,  it  will 
not  abrogate  a  prior  contract  between  parties  affected  by  it.  ^ 

A  statute  is  said  to  be  declaratory  when  its  object  is  to  make 
plain  an  existing  law  which  is  obscure,  or  which  has  fallen 
into  disuse.  A  legislature  in  this  country  cannot,  under  the 
guise  of  a  declaratory  statute,  introduce  a  new  rule  which  inter- 
feres with  vested  rights. 

In  contrast  with  the  term  "declaratory"  is  the  expression 
"remedial."  A  statute  is  said  to  be  in  this  sense  remedial 
when  it  introduces  a  new  rule.  It  may  either  enlarge  or  restrain 
the  existing  rules,  and  in  the  one  case  it  is  termed  an  enlarging^ 
and  in  the  other  a  restraining  statute.  A  statute  is  said  to  be 
penal  when  it  inflicts  a  punishment  or  penalty  for  disobedience 
of  its  provisions.  In  contrast  with  this  word  "penal,"  it  is 
said  to  be  "remedial  "  when  its  office  is  to  prevent  fraud  or  to 
enhance  the  remedy  of  an  injured  party.  The  same  statute  may 
be  in  this  sense  in  one  respect  remedial  and  in  another  penal. 

The  principal  points  to  be  here  considered,  are  the  rules  to 
be  followed  in  ascertaining  the  meaning  of  statutes,  and  their 
effect  upon  existing  law. 

II.  Rules  governing  the  Interpretation  and  Construction  of 
Statutes.  —  (1)  General  Rules  of  Interpretation.  —  General  rules 
of  interpretation  must  be  resorted  to  as  well  as  special  rules 
applicable  to  statutes. 

Interpretation  of  written  language  is  regularly  governed  by  set- 
tled rules,  otherwise  the  meaning  of  words  instead  of  being  fixed 
and  ascertainable  would  depend  upon  conjecture.     These  general 

Leggett  V.   Hunter,   19  N.  Y.  445  ;  Bank  Jewett,    J.     The  rule   is   now  too  well 

of  Chenango   v.    Brown,   26  N.  Y.  467  ;  settled  to  be  open  to  any  doubt. 
Cathcart  v.  Fire  Dept.  of  N.  Y.,  26  N.  Y.  i  Savin   v.    Hoylake   Railway  Co.,  L. 

529  :  Clark  v.  Miller,  42  Barb.  255  ;  State  R.  1  Exch.  9.     Pollock,  C.  B.,  said,  on 

of  California  v.  Rogers,  13  Cal.  159  ;  Bush-  p.  11  :  "A  private  Act  of  Parliament  is  in 

iiell  V.  Beloit,   10  Wis.  195  ;  McMillen  v.  the  nature  of  an  agreement  between  the 

The  County  Judge  of  Lee  County,  6  la.  parties.     Why  may  not  an  agreement  be 

391  ;    Page    v.   Allen,    58    Pa.    St.    338.  made   in  derogation   of  it,    provided   the 

Contra,  People  v.    Board   of  Supervisors'  agreement  be  not   inconsistent   with   the 

"Westchester  Co.,  4  Barb.   64;  Bnrch   v.  public  interest  or  morality  ? " 
Newbury,  10  N.   Y.   374,   392,  393,  per 


30  THE   LAW   OF   PERSONS. 

rules  may  be  applied  not  merely  to  statutes  but  to  contracts, 
wills,  treaties,  and  other  instruments  of  a  legal  nature  coming 
up  for  consideration  and  enforcement  before  courts  of  justice. 

The  leading  rules  for  the  interpretation  of  written  language 
are  as  follows :  — 

Rule  1.— The  interpreter  must  take  into  account  not  only 
express  words  but  reasonable  implications.  In  nearly  all  writ- 
ings there  are  ideas  to  be  implied  which  it  would  be  tedious  and 
unnecessary  to  express. 

Rule  2. —  The  words  used  are  in  general  to  be  taken  in  their 
ordinary  and  popular  sense.  It  may  appear  that  they  were  used 
in  some  art  or  business,  so  as  to  have^a  technical  meaning,  which 
must  then  be  ascertained  and  followed, 

Rule  3. —  The  intention  of  the  writer  is  primarily  to  be 
regarded,  and  the  mere  words  or  "  letter  "  of  the  writing  are  not 
to  be  followed  to  the  exclusion  of  the  intention.  But  this  rule 
is  qualified  by  the  next. 

Rule  4.  —  The  meaning  must  be  contained  within  the  writing 
called  for  convenience  "  the  text. "  The  interpreter  cannot  prop- 
erly go  beyond  the  writing  in  search  of  some  supposed  meaning. 
This  would  be  to  sacrifice  a  scientific  method  to  mere  conjecture. 

Rule  5.  —  The  whole  of  the  writing  or  text  must  be  taken  into 
account.  This  rule  is  not  confined  in  its  application  to  a  single 
document.  It  may  require  the  examination  of  a  series  of  papers 
perhaps  written  at  different  times  by  the  same  author  upon  the 
same  general  subject. 

In  applying  these  rules,  the  interpreter  must  place  himself  in 
the  position  of  the  author  of  the  text  as  nearly  as  possible.  He 
may  find  it  necessary  to  become  familiar  with  the  period  in 
which  the  author  lived,  with  the  manners,  customs,  and  modes 
of  thought  then  prevailing ;  and  then  with  all  the  light  that  can 
be  shed  on  the  text  from  external  sources,  he  must  read  and 
explain  it.  His  sole  object  with  these  aids  is  to  find  out  what 
the  writing  to  be  interpreted  means. 

Many  writers  and  even  judges  use  the  terms  "  interpretation  " 
and  "construction"  as  equivalents.  It  is,  however,  useful  to 
draw  a  distinction  between  them.  In  fact  it  may  be  said  that 
construction  begins  where  interpretation  ends.  In  applying  the 
rules  of  interpretation,  it  may  be  found  that  the  interpreter  is  led 
to  an  unreasonable  conclusion.  Perhaps  unexpected  occasions 
may  have  arisen  not  strictly  within  the  contemplation  of  the 
writer,  or  possibly  the  law  may  forbid  the  exact  accomplishment 
of  that  which  the  writer  had  in  mind.  It  is  the  office  of  con- 
struction to  determine  whether  these  variations  are  fatal,  or 


THE   SOURCES   OF   THE   LAW.  31 

whether  the  text  may  be  so  enlarged  in  its  meaning  as  to  inclnde 
such  unexpected  occasions,  or  whether  the  legal  prohibitions 
may  be  avoided  by  giving  the  words  a  sense  less  extensive  than 
that  which  the  writer  had  precisely  in  mind.  If  the  document 
to  be  interpreted  be  a  legal  one,  this  last  point  involves  the  doc- 
trine of  cy  pres,  or  the  doctrine  of  approximation.  It  is  a 
principle  frequently  resorted  to  in  the  construction  of  wills,  and 
sometimes  of  statutes,  but  rarely,  if  ever,  in  the  case  of  deeds, 
where  more  rigid  rules  prevail. 

Construction  has,  in  its  various  aspects,  been  termed  strict, 
liberal,  and  extravagant.  It  is  said  to  be  strict  when  the 
regular  rules  of  interpretation  are  closely  followed ;  and  liberal 
when  the  meaning  of  the  text  is  extended  by  analogy  to  instances 
not  expressed,  or  where  the  literal  meaning  is  departed  from 
because  it  would  lead  to  absurd  or  unreasonable  results.  It  is 
said  to  be  extravagant  when  it  avoids  rules  and  resorts  to  con- 
jecture. The  interpreter  may  perhaps  abandon  what  is  written 
on  a  supposed  theory  that  such  and  such  a  thing  ought  to  have 
been  written,  and  that  this  meaning,  though  not  contained  in 
the  writing,  should  prevail. 

The  rules  of  interpretation,  though  recognized  and  well  under- 
stood, are  constantly  violated  in  the  ordinary  affairs  of  life,  par- 
ticularly in  the  heat  of  controversy.  History  is  full  of  instances. 
In  courts  of  justice  questions  of  this  kind  are  decided  upon  argu- 
ment as  propositions  of  law,  and  with  a  professed  observance  of 
settled  rules. 

(2)  SiJecial  Rules  applicable  to  the  Interpretation  and  Con- 
struction of  Statutes.  —  Rule  1.  —  The  words  used  must  in  general 
be  taken  in  their  ordinary  and  popular  sense. 

For  example,  a  statute  provided  that  each  time  a  locomotive 
engine  of  a  railway  passed  over  the  railway  at  a  point  where  it 
crossed  a  public  highway,  a  bell  should  be  rung  or  a  whistle 
sounded,  a  penalty  being  attached  to  the  violation  of  the  rule.^ 
It  was  decided  that  the  statute  applied  although  the  railroad  and 
highway  did  not  cross  each  other  upon  the  same  level.  The  court 
gave  the  word  "  cross  "  its  popular  sense  of  "  going  over."  2  So, 
where  a  statute  in  England  prohibited  tlie  "  conducting  "  or  "  driv- 
ing" of  cattle  through  the  streets  of  a  town  on  Sunday,  it  was  held 
that  this  prohibition  did  not  extend  to  a  case  where  cattle  were 
carried  in  vans,  but  meant  simply  the  act  of  conducting  or  driving 
the  cattle  in  the  ordinary  manner  in  which  cattle  are  driven.^ 

1  N.  Y.  Laws  of  1850,  ch.  140,  p.  232.  8  Triggs    v.    Lester,    L.    E.    1   Q,    B. 

2  People  V.  N.  Y.  Central  R.  R.  13  N.     259. 
Y.  78  ;  Matter  of  O'Neil,  91  N.  Y.  516. 


32  THE    LAW   OF   PEKSONS. 

But  this  rule  is  qualified  if  the  statute  concerns  some  special 
or  technical  subject,  in  which  case  the  special  sense  applicable 
to  that  subject  must  be  adopted.  Thus  a  commercial  tariff  law- 
must  be  interpreted  according  to  the  commercial  sense.  For 
example,  the  expression  ''  manufactured  India-rubber  shoes,"  in 
the  commercial  tariff  of  1842,i  was  held  to  mean  such  shoes  made 
in  foreign  countries,  as  were  calculated  to  rival  some  domestic 
manufacture  here,  and  not  those  w^hich  were  imported  merely  to 
furnish  raw  material  in  a  more  portable  and  useful  form  for 
other  manufactures  in  this  country .^ 

Rule  2.  —  The  court  is  not  to  go  beyond  the  statute  in  search 
of  some  sense  that  tlie  legislature  might  be  conjectured  to  have 
intended.  The  rule  volidt  sed  non  dixit  may  be  applied.  The 
meaning  of  this  expression  is  that  the  legislature  may  have  had 
some  intention  but  it  has  not  succeeded  in  expressing  it,  and  so 
the  statute  is  without  effect.  Still,  it  is  a  strong  argument  in 
favor  of  a  specified  meaning,  that  without  it  the  statute  would 
be  nugatory.  It  is  difficult  to  suppose  that  a  legislature  would 
enact  a  statute  without  any  meaning. 

Rule  3.  —  The  whole  of  the  statute  must  be  taken  into  account. 
A  cognate  rule  is  that  statutes  upon  the  same  subject  must  be 
considered  together.  Sucli  statutes  are  said  to  be  in  pari  viateria. 
The  principle  is  expressed  in  the  following  form  by  Mr.  Barring- 
ton,  "  The  best  exposition  of  the  meaning  of  an  author  is  another 
part  of  his  works,  and  the  successive  legislatures  must  be  construed 
as  constituting  one  author."  ^ 

The  Taiiff  Act  of  1861  *  exempted  from  duty  "  animals,  living 
of  all  kinds,"  "  birds,  singing  or  other,"  etc.  A  later  act  of  1866  ^ 
imposed  a  duty  on  all  horses,  cattle,  etc.,  "  and  other  live 
animals."  It  was  decided  that  "  birds  "  were  not  included  among 
"  animals  "  in  the  last  act,  as  they  were  not  in  the  fiirst.^  The 
fact  that  birds  are  properly  speaking  "  live  animals "  did  not 
affect  the  decision. 

Rule  4.  —  Contemporaneous  exposition  is  very  strong  and 
effective  in  law.  The  meaning  of  this  rule  is,  that  in  interpreting 
a  statute  great  authority  is  attributed  to  the  construction  put  upon 
it  by  judges  who  lived  at  the  time  when  the  statute  was  made  or 
soon  after,  {a)     It  is  thought  that  tliey  are  best  able  to  ascertain 

1  5  U.  S.  Stat,  at  Large,  555.  *  12  U.  S.  Stat,  at  Large,  193. 

2  Lawrences.  Allen,  7  How.  U.  S.  785,  5  14  u.  S.  Stat,  at  Large,  48. 

794.  6  Reiche  v.  Sraythe,  13  Wall.  162.    See 

8  Barrington  on  Statutes,  146.  also  Horner  v.  The  Collector,  1  Wall.  486. 


(a)  See  The  People  v.  Charbineau,  115  N.  Y.  433  ;  cf.  Matter  of  Washington  Street 
Asylum,  Id.  442. 


THE    SOURCES    OF   THE   LAW.  33 

the  intention  by  knowing  the  circumstances  then  existing.  Even 
the  opinions  of  contemporary  members  of  the  legal  profession  may 
shed  light  upon  a  case  where  the  words  of  a  statute  are  obscure 
or  doubtful.  Lord  Coke  has  said  "  that  in  construing  a  statute 
great  attention  ought  to  be  paid  to  the  construction  which  the 
sages  of  the  law,  who  lived  about  the  time  or  soon  after  it  was 
made,  put  upon  it."  ^ 

Rule  5.  —  In  interpreting  a  statute  changing  the  existing  law 
regard  must  be  had  to  three  points :  the  old  law,  the  mischief, 
the  remedy.  By  "  mischief "  is  meant  the  evil  or  bad  effect 
of  the  law  in  force  at  the  time  when  the  statute  was  enacted. 
The  rule  of  construction,  then,  is  to  confine  the  words  of  the 
statute  (even  though  in  fact  of  broader  signification)  to  the 
change  intended  to  be  produced.  The  rule  aims  at  no  more  than 
to  ascertain  the  true  intent  of  the  legislature.  For  example,  it 
was  an  old  rule  that  a  bishop  having  church  lands  under  his  con- 
trol might  lease  them  to  tenants  for  any  term  of  years  that  he 
might  see  fit,  at  such  a  rent  as  he  might  choose,  Tlie  mischief 
or  bad  effect  of  this  rule  was  that  a  particular  bishop  might  lease 
for  a  long  number  of  years  at  a  low  rent  and  thus  impoverish  his 
successors.  The  remedy  provided  by  a  statute  was  that  a  bishop 
should  lease  only  for  twenty-one  years.  After  this  enactment,  a 
certain  bishop  leased  for  his  own  life,  which  might,  of  course,  by 
possibility  exceed  twenty-one  years.  It  was  still  held  that  the 
lease  was  not  void,  as  it  would  in  any  event  terminate  at  the 
bishop's  death  and  could  not  impoverish  his  successors. 

Rule  6.  —  The  reason  and  spirit  of  the  statute  must  be  followed 
rather  than  the  letter.  Sometimes  it  is  said  "  that  he  who  clings 
to  the  letter  adheres  to  the  bark  "  {qui  Jiaeret  in  litera  haeret  in 
cortlce),  or  in  other  words  does  not  penetrate  to  the  heart  of  the 
subject.  Again  it  is  said  that  "  the  spirit  of  the  law  is  the  life 
of  the  law."  Accordingly,  if  in  interpreting  the  statute  an  un- 
reasonable or  highly  inconvenient  result  is  arrived  at  by  one  con- 
struction, it  may  lead  to  the  rejection  of  it,  and  the  adoption  of 
another  more  reasonable  in  its  nature.^ 

A  statute  in  England  gave  the  Queen  in  Council  power  to  make 
orders  acting  upon  persons  having  the  care  "  of  vaults  or  places 
of  burial."  It  was  held  that  this  expression  did  not  apply  to  a 
case  where  land  belonged  to  a  private  owner,  where  there  had 

2  Inst.  11,  136,  181.     Long  and  un-  that  the  policy  upon  which  it  was  estab- 

interrupted    practice    under   a    statute  is  lished  has  ceased.      Brown  v.    Clark,  77 

good  evidence  of  its  construction.    Power  N.  Y.  369.     Still  it  is  a  strong  argument 

V.  Village  of  Athens,  99  N".  Y.  592.  against  a  particular  construction  that  it 

^  2  A   court   cannot,  however,    dispense  would  lead  to  manifest  injustice.     People 

with  a  statutory  rule  because  it  may  appear  v.  Davenport,  91  N.  Y.  574. 


34  THE   LAW   OF   PERSONS. 

once  been  burials  whicb  had  ceased  when  the  statute  was  passed. 
It  was  said  that  to  hold  otherwise  would  lead  to  the  unreason- 
able conclusion  that  if  there  had  ever  been  a  burial  in  a  private 
ground,  the  owner  could  be  prevented  from  making  any  beneficial 

use  of  it. 

So,  where  a  New  York  statute  ^  declared  that  w^hen  persons 
travelling  in  carriages  on  a  road  or  highway  shall  meet,  they 
shall  seasonably  turn  their  carriages  to  the  right  of  the  centre 
of  the  road,  so  as  to  permit  such  carriages  to  pass  without  inter- 
ference or  interruption,  it  was  decided  that  it  liad  no  application 
to  the  meeting  of  railroad  cars  with  common  vehicles.  Accord- 
ingly, notwithstanding  the  statute,  the  carriage  might  in  meeting 
the  car  turn  either  to  the  left  or  the  riglit.^  A  case  may  be 
within  the  letter  of  a  statute  and  not  within  the  intention  of 
the  legislature. 

Rule  7.  —  A  penal  statute  should  be  construed  strictly  according 
to  the  literal  meaning  of  the  words,  and  including  no  cases  except 
such  as  are  clearly  within  their  terms. 

This  rule  will  be  considered  further  in  connection  with  the 
next  rule. 

Rule  8.  —  Remedial  statutes,  as  contrasted  with  penal,  should 
have  a  large  and  liberal  construction  in  order  to  suppress  fraud 
or  w^rong,  and  promote  the  remedy  of  the  injured  party. 

As  a  statute  may  be  in  one  aspect  remedial  and  in  another 
penal,  the  same  words  may  receive  a  twofold  construction  de- 
pending upon  whether  the  penal  side  of  it  is  before  the  court, 
or  the  remedial.  A  case  arose  under  the  English  statute  of  9 
Anne,  c.  14,  which  provided  in  substance  that  when  XIO  or 
upwards  were  lost  at  gaming  "  in  one  sitting "  the  loser  could 
recover  the  money  lost,  while  the  winner  should  forfeit  three 
times  the  amount  to  any  one  who  would  sue  for  it.  The  words 
to  be  interpreted  were  "  one  sitting."  The  facts  which  presented 
the  question  were  that  two  gamesters  were  engaged  in  play  for 
twenty-four  hours  consecutively,  except  that  they  adjourned  for 
one  hour  to  dine.  There  was  held  to  be  "one  sitting"  for  the 
purpose  of  restoring  the  money  lost,  though  the  court  said  it 
would  have  been  held  otherwise  had  an  action  been  brought  for 
the  penalty .2 

Rule  9.  —  When  statutes  or  different  parts  of  the  same  statute 
are  claimed  to  be  contradictory,  the  court  will  strive  to  construe 
them  in  such  a  way  that  both  may  stand.*     This  rule  is  based  on 

1  1  R.  S.  695,  §  1.  s  Bones  v.  Booth,  2  W.  Black.  1226. 

2  Heojnn  v.  Eighth  Ave.  R.  R.  Co.,  15  *  Chamberlain  v.  Chamberlain,  43  N. 
N.  Y.  380.                                                        Y.  424. 


THE   SOURCES   OF   THE   LAW.  35 

the  principle  that  such  an  interpretation  must  be  made  that  the 
subject-matter  will  stand  rather  than  fail, —  ut  res  magis  valeat 
quam  pereat.  If  it  is  impossible  to  reconcile  the  contradictory  or 
repugnant  expressions,  a  saving  clause  repugnant  to  the  general 
scope  of  the  statute  will  be  declared  void,  or  a  rule  hereafter  to 
be  adverted  to  will  be  followed,  that  the  words  used  later  in  point 
of  time  will  prevail. 

Rule  10.  —  A  distinction  must  be  taken  between  an  exception 
and  a  proviso. 

If  a  particular  clause  be  treated  as  an  exception  and  an  action 
be  brought  for  a  breach  of  the  statute,  it  will  be  incumbent  on 
the  plaintiff  to  show  in  his  pleadings  that  the  defendant  is  not 
protected  by  the  exception.  But  if  the  clause  be  treated  as  a 
proviso,  the  party  sued  if  embraced  within  the  general  words  of 
the  statute  will  be  answerable,  unless  he  shows  on  his  part  that 
he  is  relieved  by  the  operation  of  the  proviso.  The  distinction 
becomes  a  rule  of  pleading,  and  shows  which  of  the  two  parties 
to  an  action  holds  the  burden  of  proof.  One  mode  of  distin- 
guishing the  two  is  to  note  that  an  exception  is  a  part  of  the 
general  words  of  the  statute  ;  a  proviso  follows  after  the  general 
words,  aud  is  usually  preceded  by  the  word  "  provided."  The  dis- 
tinction itself  seems  highly  technical.  There  is  a  further  ques- 
tion whether,  if  a  proviso  be  repugnant  to  the  general  body  of 
the  act,  the  so-called  "purview,"  the  proviso  is  void.  Upon  this 
point  the  authorities  are  apparently  at  variance,  though  not  per- 
haps really  so  when  closely  scrutinized.  A  proviso  does  not  have 
the  same  effect  in  this  respect  as  the  "  saving  clause  "  referred 
to  in  Rule  9. 

An  old  decision  compares  the  case  to  a  will,  where  a  later 
clause  prevails  rather  than  an  earlier  one,  because  it  is  the  last 
expression  of  the  testator's  desire ;  and  so  by  analogy  in  the 
present  case,  the  last  expression  of  the  lawgiver's  intent  should 
be  heeded,^ 

The  correct  view  seems  to  be  that  when  a  clause  in  tlie  nature 
of  a  proviso  does  not  destroy  the  "  purview,"  but  leaves  that  to 
prevail  in  its  general  scope,  and  at  the  same  time  withdraws  from 
its  operation  some  item  which  would  otherwise  be  included,  the 
proviso  is  valid.^ 

Rule  11.  —  In  general  a  statute  acts  prospectively.  It  affects 
future   and  not  past  transactions.     The  general  principle  is,  to 

1  Attorney-General  v.  Chelsea  Water-  Me.  360,  369,  370  ;  ^Intter  of  N.  Y.  & 
Works,  Fitzgibbon's  R.  195  ;  Townsend  Brooklyn  Bridge,  72  X.  Y,  527,  530, 
V.  Brown,  4  Zab.  80.  531. 

2  Savings   Institution    v.    Makin,    23 


36  THE   LAW   OF  PEKSONS. 

make  the  statute  act  retrospectively  only  when  the  words  impera- 
tively require  it.^ 

To  this  rule  there  are  some  important  exceptions.  If  the 
ohjcct  of  the  statute  be  to  prevent  a  delay  or  failure  of  justice, 
it  may  properly  be  allowed  a  retrospective  operation.  An  act 
repealing  the  penal  severities  of  an  usury  law  may  be  construed 
in  the  same  way.^  It  would  seem  that  this  principle  would 
extend  to  the  repeal  of  any  penal  enactment.  The  great  object 
of  the  rule  is,  then,  to  prevent  a  retrospective  operation  of  the 
statute  if  it  works  injustice  or  interferes  with  vested  rights.^ 
If,  however,  the  words  of  the  statute  are  plain,  its  retrospective 
operation  must  be  allowed  ;  and  then  a  question  may  arise  as  to 
whether  the  law  is  not  opposed  to  some  constitutional  provision 
upholding  vested  rights. 

Rule  12.  — A  difference  is  to  be  noted  between  words  that  are 
"  mandatory  "  and  such  as  are  "  directory." 

Words  are  said  to  be  mandatory  when  an  act  prescribed  must 
be  done  as  the  statute  requires ;  they  are  directory  when  the  act 
may  be  done  in  some  other  way  or  form,  or  at  some  other  time. 
This  distinction  has  much  to  do  with  the  time  when  an  act  must 
l)c  performed.  It  is  a  general  rule  that  if  an  act  be  directed  to  be 
done  on  a  particular  day,  it  may  be  done  on  some  other  and  even 
later  day.  On  the  other  hand,  where  the  interests  of  the  public 
or  of  third  persons  are  concerned,  permissive  words  will  be  con- 
strued as  obligatory;  the  word  "may"^  will  be  held  to  mean 
"  must."  {a) 

Rule  13.  —  Statutes  giving  authority  to  be  exercised  in  deroga- 
tion of  private  right  must  be  strictly  followed. 

An  instance  of  this  kind  is  that  of  land  sold  by  law  for  the  non- 
payment of  taxes.  If  the  steps  required  by  the  statute  are  not 
strictly  followed  by  the  public  authorities,  the  sale  will  be  void.^ 
Another  important  instance  is  that  of  the  delegation  to  a  village 
or  other  local  authority,  of  the  exercise  of  the  right  of  eminent 
domain.*^ 

1  Dash  V.  Van  Kleeck,  7  Johns.  477.  67  ;  Newburg  Turnpike  Road  v.  Miller, 
The  French  Code  expresses  the  principle     5  Johns.  Ch.  101. 

without  qualification  :   "  The  law  only  pro-  ^  Strikers.  Kelly,  2  Den.  323. 

vides  for  the  future  ;  it  has  no  retroactive  ^  Matter  of  the  Rensselaer  R.  R.  Co.  v. 

effect."     Civil  Code,  Art.  1,  §  2.  Davis,  43  N.  Y.  137.     Matter  of  the  Com- 

2  Curtis  V.  Leavitt,  15  N.  Y.  9.  missioners  of  Washington  Park,  52  N.  Y. 
8  Wadsworth  v.  Thomas,  7  Barb.  445.  131. 

*  Livingston  v.  Tanner,  14  N.  Y.  64, 


[a]  See  Gilmore  v.  City  of  Utica,  121     cuse,  59  Hun,  258  ;  afTd  128  JST.  Y.  632. 
N.  Y.  561;  The  People  v.  Mayor  of  Syra- 


THE   SOURCES   OF   THE   LAW.  37 

Rule  14.  —  Where  a  statute  having  in  view  the  protection  of  the 
public  health  or  morals,  or  the  suppression  of  frauds,  inflicts  a 
penalty  for  doing  an  act,  its  commission  is  deemed  unlawful,  though 
not  prohibited  in  terms.  The  penalty  implies  a  prohibition.  A 
contract  to  perform  the  act  is  illegal  and  void.  It  was  accord- 
ingly held  that  one  who  sells  liquor  without  a  license  in  violation 
of  the  excise  law,  cannot  recover  the  price  of  the  liquor  from  the 
purchaser.! 

Rule  15.  —  A  person  may  waive  a  statutory  or  even  a  constitu- 
tional provision  int<;nded  for  his  benefit ;  ^  but  jurisdiction  of  the 
subject-matter  of  an  action  cannot  be  obtained  b}^  a  court  in  this 
way,  although  a  party  may  waive  the  statutory  steps  necessary  to 
bring  himself  before  a  court  which  already  has  jurisdiction  of  the 
subject-matter.^  Jurisdiction  means  the  power  which  a  court  has 
to  hear  and  determine  a  cause.*  Such  a  power  can  be  conferred 
by  law  alone,  and  not  by  the  consent  of  the  parties.  But  where 
the  court  has  jurisdiction  of  the  subject-matter,  if  a  defendant 
submits  to  it,  he  cannot  afterwards  object,  for  example,  that  by 
law  the  action  should  have  been  brought  in  another  county.  His 
submission  is  a  waiver  of  such  an  objection.^ 

Rule  16.  —  When  a  statute  gives  a  remedy  for  a  right  already 
existing  at  common  law,  an  injured  party  may  at  his  election 
resort  either  to  the  common  law  or  to  the  statutory  proceeding. 

This  statement  assumes  that  there  has  been  no  repeal  of  the 
common  law  either  in  express  terms  or  by  implication.  The  rule 
is  applicable  both  to  civil  and  criminal  proceedings.^  But  if  the 
right  itself  is  created  by  the  statute,  and  adequate  means  for  en- 
forcing it  are  provided,  the  proprietor  of  the  right  is  confined  to 
the  statutory  remedy .^  This  point  is  in  fact  covered  by  the  suc- 
ceeding rule. 

Rule  17.  —  The  expression  of  one  thing  is  the  exclusion  of 
another,  expressio  unius,  exclusio  alterius. 

This  is  a  rule  of  wide  application,  extending  to  all  written 
instruments,  but  is  said  never  to  be  more  applicable  than  in  the 
case  of  statutes.^  Considerable  caution  is  to  be  used  in  the  appli- 
cation of  this  principle.  It  may  be  that  the  statute  mentions 
some  things  of  a  class  by  way  of  example,  in  which  case  others  of 
the  class  would  not  be  excluded.     On  the  other  hand,  the  words 

1  Griffith  V.  Wells,  3  Den.  226.  s  Brown  v.  Webber,  6  Cush.  560. 

2  Buel  V.   Trustees   of  Lockport,   3  N.  6  jje^  v.  Robinson,  2  Burr.  800,  805. 
Y.  197.  •  Dudley    v.    Mayhew,    3    N.    Y.    9  ; 

3  Coffin  V.  Tracy,  3  Caines,   129  ;  Davis  Donaldson  v.  Beckett^,  2  Bro.  P.  C.  129. 
V.  Packard,  7  Pet.  276.  *  Broom's  Legal  Maxims,  652. 

^-United  States  v.  Arredondo,  6  Pet.  691. 


38  THE  LAW   OF   PEESONS. 

may  be  restrictive  and  intended  to  exclude  all  that  are  not  enume- 
rated. This  view  may  easily  be  taken  where,  for  example,  certain 
specific  things  are  taxed.  The  argument  would  be  strong  that 
otlier  articles  were  not  to  be  taxed.^  Similar  principles  have 
been  applied  to  statutes  conferring  immunities  or  creating  exemp- 
tions from  statutory  liabilities.  Common-law  exemptions  would 
be  tacitly  excluded.^  This  rule  may  easily  be  carried  too  far, 
as  exceptions  are  often  introduced  as  a  mere  matter  of  caution.^ 
One  of  the  Amendments  to  the  United  States  Constitution  was 
adopted  to  avoid  any  use  of  this  rule  by  the  court  adverse  to  the 
rights  of  the  people.^ 

Rule  18.  —  When  words  are  of  doubtful  meaning  certain  cir- 
cumstances may  be  called  on  to  aid  the  interpretation,  which 
would  not  be  resorted  to  if  the  meaning  were  clear, 

1  "lie  preamble  may  be  referred  to  in  order  to  explain  the 
en.  ng  part  of  the  statute,  when  doubtful ;  but  not  to  restrain 
i'  ^.;)  waning  when  clear  and  unambiguous.^ 

The  title  may  be  referred  to  for  the  same  purpose.^ 
8.  lleference   in   like  case   may  be   had  to  extrinsic  circum- 
stances.' 

4.  In  construing  revised  or  codified  statutes,  a  mere  change  of 
language  will  not  be  regarded  as  evidence  of  an  intention  to  vary 
the  construction.  Tlie  intent  to  vary  must  be  manifest  and 
certain.^ 

5.  When  one  statute  is  referred  to  in  another  by  several  de- 
scriptive particulars,  some  of  which  are  plainly  false  and  others 
true,  the  former  may  be  rejected  as  surplusage,  provided  the 
latter  are  sufficient  to  show  clearly  what  is  meant.^ 

6.  Although  a  statute  be  inartificially  drawn,  effect  must  be 
given  to  it  if  the  intent  can  be  fairly  made  out  from  the  words.^'^ 

7.  Where  words  are  obscure  the  intent  may  be  inferred  from 
the  cause  or  necessity  of  the  enactment.^i 

^   The  King  V.  Inhabitants  of  AVoodlawn,  ®  Cumines  v.  Supervisors   of  Jefferson 

2  East,  164  ;    Lead  Company  v.  Richard-  Co.,  63  Barb.  287  ;  People  v.  Wood,   71 

son,  3  Burr.  1341,  1344.  N.  Y.  371;  Piimpellyv.  VilLage  of  Owego, 

2  The  King  v.   Cunningham,    5   East,  45  How.  Pr.  219. 

478.  7  Smith  v.  Helmer,  7  Barb.  416. 

3  See  the  principle  stated  and  qualified  8  Dominick  v.  Michael,  4  Sandf.  374  ; 
in  Tinkham  v.  Tapscott,  17  N.  Y.  141,  Douglas  v.  Douglas,  5  Hun,  140  ;  Davis  v. 
1-^2,  153.  Davis,  75  N.  Y.  221. 

*  U.     S.    Constitution,    Amendments,  9  Watervliet  Turnpike  Co.  v.  McKean, 

Art.  IX.,  "The  enumeration  in  the  Con-  6  Hill,  616. 

stitution   of  certain   rights   shall   not   be  ^  Matter  of  Commissioners  of  Wash- 
construed  to  deny  or  disparage  othere  re-  ington  Park,  Albany,  52  N.  Y.  131. 
tained  by  the  people."  n  People  v.  Asten,  49  How.  Pr.  405  ; 

5  Jaekson  v.  Gilchrist,  15  Johns.  89.  aff'd  62  N.  Y.  623. 


THE    SOUECES    OF   THE    LAW.  39 

8.  Inconsistent  expressions  must  be  harmonized  to  reach  the 
intent.^ 

9.  Grammatical  rules  do  not  prevail  over  the  manifest  sense  of 
the  language.^ 

10.  A  re-enactment  of  the  same  provisions  in  substantially  the 
same  terms  as  in  former  statutes,  is  deemed  an  adoption  by  the 
legislature  of  the  judicial  decisions  on  the  former  acts.^ 

11.  Circumstances  leading  to  the  enactment  of  a  statute  may 
sometimes  be  considered  in  aid  of  its  interpretation.* 

These  and  like  special  rules,  being  for  the  most  part  intended 
to  overcome  doubt  and  remove  obscurity,  will  not  be  made  use  of 
when  the  language  is  plain  and  unequivocal.  In  such  a  case,  the 
title  of  the  statute  is  not  considered;^  though  there  may  be  special 
cases,  arising,  perhaps,  under  constitutional  clauses,  in  which  the 
court  will  look  to  the  title  for  the  true  construction,  even.f^ough 
the  language  of  the  act  be  clear.  It  will,  however. i.m  \  ^j  a 
case  proceed  with  great  caution.^  The  same  general  ri  t)- 
plies  to  the  use  of  a  preamble  when  the  language  of  t  ',ct 
is  clear.'^ 

III.  Repeal  and  its  Effect.  —  It  is  of  the  essence  of  a  statute, 
not  in  its  nature  declaratory,  that  it  changes  the  existing  law. 
The  common  law  thus  gives  place  to  a  statute,  and  an  old  statute 
to  a  new  one.  All  statutes  not  amounting  to  contracts  are  thus 
capable  of  repeal.  The  leading  principles  governing  repeal  are 
embodied  in  the  following  rules  :  — 

Rule  1.  —  No  statute  can  be  rendered  irrepealable  by  a  declara- 
tion of  the  legislature  tliat  it  shall  not  be  repealed.  Nor  can  any 
existing  legislature  impose  upon  subsequent  legislatures  valid 
restrictions  as  to  modes  of  legislation.^  Each  successive  legis- 
lative body  has  plenary  power  over  the  whole  field  of  legislation, 
unless  restricted  by  constitutional  provisions. 

Rule  2.  —  Statutes  may  be  repealed  either  by  express  words 
or  by  implication.  Questions  principally  arise  as  to  repeal  by 
implication.  There  will  in  general  be  no  repeal  by  implication 
unless  the  two  acts  are  manifestly  inconsistent  with  and  repug- 
nant to  each  other.^     Where  tvro  statutes  can  stand  together, 

1  In  the  Matter  of  N.  Y.  &  Brooklyn  ^  People  v.  Davenport,  91  IST.  Y. 
Bridge  Co.,  72  N.  Y.  527.                               574. 

2  People  V.  Gates,  56  N.  Y.  387.  ^  Constantine  v.   Van  Winkle,  6  Hill, 

3  People  V  Green,  56  N.  Y.  466.  177  ;    Jackson    v.    Gilchrist,    15    Johns. 
*  People  V.    New  York  &  Manhattan     89. 

Beach  Eailway  Co.,  84  N.  Y.  565.  8  Smith  v.  Helmer,  7  Barb.  416. 

5  In  the  flatter,  etc.,  Village  of  Mid-  »  Bowen  v.  Lease,  5  Hill,  221. 

dletown,  82  N.  Y.  196. 


40  THE   LAW   OF   PERSONS. 

the  latter  will  not  be  held  to  repeal  the  former.^  There  must 
be  repugnancy  .2  (a) 

Rule  3.  —  Where  amendments  to  Revised  Statutes  or  Codes 
are  introduced  by  the  statement  that  the  former  statute  "  is 
hereby  amended  so  as  to  read  as  follows,"  this  expression  is  held 
to  have  been  adopted  for  the  purpose  of  adjusting  the  amended 
sections  to  the  original  enactments.  The  intent  of  the  legislature 
is,  that  when  the  system  after  repeated  amendments  becomes 
complete,  the  different  parts  may  be  put  together  so  as  to  form  a 
sj'stematic  code,  the  portions  of  the  amended  sections,  which  are 
merely  copied  without  change,  not  being  considered  as  repealed 
and  then  re-enacted,  but  as  having  been  the  law  all  along ;  and 
the  new  parts  are  not  to  be  taken  to  have  been  the  law  at  any 
time  prior  to  the  passage  of  the  amended  act.^ 

Rule  4.  —  One  statute  may  be  substituted  for  another  in  a  way 
which  differs  somewhat  from  a  mere  repeal.  Thus  if  a  later 
statute  does  not  purport  to  amend  a  former  one,  but  covers  the 
whole  subject,  it  must  be  regarded  as  a  substitute,  and  the  former 
is  repealed.* 

Rule  5.  —  A  special  statute,  local  in  its  application,  will  not  be 
repealed  by  the  general  words  of  a  statute  general  in  its  applica- 
tion, unless  the  intent  of  the  legislature  is  manifest.  The  general 
phrases  will  not  suffice.^ 

Rule  6.  —  When  a  repealing  statute  is  itself  repealed,  the  for- 
mer law  revives.  This  rule  prevails  whether  the  repeal  be  by 
express  words  or  by  implication.^  This  is  a  rule  of  logic,  and  is 
not  confined  to  acts  of  the  legislature,  but  includes  resolutions 
passed  and  repealed  at  public  meetings  in  general.  There  are  in 
some  of  the  States  general  laws  restricting  to  some  extent  the 
operation  of  this  principle. 

Rule  7.  —  If  a  statute  is  repealed  when  proceedings  under  it 
are  pending,  the  proceedings  themselves  are  nullified.  Thus  if 
a  statute  provide  a  penalty  for  the  commission  of  an  act,  and 
the  statute  be  repealed,  the  penalty  cannot  be  exacted  for  acts 

1  People  V.  Palmer,  52  N.  Y.  83.  *  People  v.  City  of  Brooklyn,  69  N.  Y. 

2  Mongeon   v.  The  People,  55   N.  Y.     605. 

613  ;   In  the  Matter  of  the  Evergreens,  47  ^  People  v.  Quigg,  59  N.  Y.  83. 

N.  Y.  216.  6  Wheeler  v.    Roberts,    7  Cow.    536  ; 

3  Ely  v.  Holton,  15  N.  Y.  595;  Cal-  Van  Denburgh  w.  Village  of  Greenbush,  66 
houn  V.  Delhi  R.  R.,  28  Hun,  379.  N.  Y.  1  ;  Schwab  r.  People,  4  Hun,  520. 

(a)  Repeal  by  implication  is  sometimes  amended  by  the  passage  of  any  subsequent 

made   im])Ossible   by    statute.     Thus   the  statute  inconsistent  therewith,  unless  such 

New  York  Penal  Code  provides  that  :  "No  statute  shall  explicitly  refer  thereto,  and 

provision  of  this  Code,  or  any  part  thereof,  directly  repeal,  alter  or  amend  this  Code 

shall     be     deemed     repealed,    altered    or  accordingly."     §  728. 


THE   SOURCES   OF   THE   LAW.  41 

committed  before  the  repeal. ^  Even  if  an  action  had  been  com- 
menced, it  could  not  be  continued,  and  if  a  conviction  had  been 
had,  there  could  be  no  judgment.  But  a  repeal  after  judgment 
does  not  affect  the  right  declared  by  it.^  It  is  quite  common 
to  find  a  saving  clause  in  repealing  acts,  exempting  pending  pro- 
ceedings from  the  operation  of  this  rule. 

lY,  Constitutional  Restrictions  upon  Legislation.  —  The  power 
both  of  Congress  and  of  the  State  legislatures  to  pass  laws  is 
to  a  considerable  extent  restrained  by  constitutional  provisions. 
The  powers  of  Congress  are  found  solely  in  the  United  States 
Constitution,  and  Congress  is  restrained  from  legislation  not 
therein  expressly  or  impliedly  authorized.  The  powers  of  State 
legislatures  may  be  and  are  limited  both  by  the  United  States 
and  State  constitutions. 

The  restrictions  in  the  United  States  Constitution  are  of  a  gen- 
eral nature,  directed  against  legislation  unsound  in  theory  or 
mischievous  in  practice.  Similar  provisions  are  found  in  State 
constitutions ;  but,  besides  these,  there  are  frequently  matters 
of  detail,  which  are  regarded  as  of  sufficient  importance  to  be 
withdrawn  from  legislative  action.  These  vary  much  in  the  dif- 
ferent States.  For  instance,  it  is  provided  in  a  number  of  the 
State  constitutions  that  "  no  private  or  local  bill  which  may  be 
passed  by  the  legislature  shall  embrace  more  than  one  subject, 
and  that  shall  be  expressed  in  the  titled  ^  Such  a  clause  makes 
the  title  of  constitutional  importance,  and  if  the  provision  is  trans- 
gressed the  law  is  void. 

The  following  are  some  of  the  principles  of  construction  appli- 
cable to  this  general  subject.  The  courts  will  presume  in  the 
construction  of  a  State  constitution  that  a  law  is  constitutional 
until  one  who  alleges  the  contrary  proves  it  beyond  rational 
doubt.4  The  true  ground  on  which  courts  interfere  is  that  tliere 
are  express  constitutional  provisions  limiting  legislative  power, 
and  controlling  the  will  of  the  legislature  by  paramount  law.^ 
Accordingly,  before  a  court  will  pronounce  a  law  void,  it  must 
clea^'ly  appear  that  the  act  cannot  be  supported  by  any  reasonable 

1  Powell  x:  The  People,  5  Hun,  burgli  v.  Village  of  Greenbush,  66  N.  Y. 
169.  1,  at  p.  4. 

2  Hartiing  v.  The  People,  22  N.  Y.  95  ;  3  See  Constitution  of  N.  Y.,  Art.  III. 
The  People  v.   Board  of  Police,   40  Barb.  §  16. 

626  ;  s.  c,  39  N.  Y.  506.    "  When  an  act  *  Ex    parte   M'Collum,   1    Cow.    550  ; 

is  repealed  it  must  be  considered  (except  Clarke  v.   City  of    Piochester,    24    Barb, 

as  to  transactions  past  and  closed,  and  pos-  446. 

sibly  as  to  some  pending  cases)  as  if  it  had  ^  Cochran  v.   Van  Surla}',    20    Wend, 

never  existed. "     Eakl,   J.,  in  Van  Den-  365  ;  Newell  v.  People,  7  N.  Y.  9,  109. 


42  THE   LAW    OF    PERSONS. 

intendment  or  allowable  presumption.^  The  courts  do  not  imply 
a  conflict  between  the  law  and  the  constitution,  but  expect  it 
to  be  clear  and  substantial.^  Still  an  act  violating  the  true 
intent  and  meaning  of  the  constitution  is  as  really  prohibited 
as  if  it  were  within  the  strict  letter  of  the  instrument,  and  the 
courts  will  see  that  the  constitution  is  not  evaded,  nor  its  intent 
frustrated.^ 

A  law  may  be  constitutional  in  one  aspect  and  unconstitutional 
in  another.  For  example,  a  law  constituting  a  crime,  and  giving  it 
both  a  future  and  a  retrospective  application,  would  not  be  wholly 
void.  It  might  be  sustained  as  to  future  cases,  while  it  would  be 
declared  void  so  far  as  it  was  retroactive.* 

It  is  quite  common  in  the  various  States  to  amend  the  constitu- 
tion. Such  additions  or  alterations  must  be  read  in  connection 
with  the  whole  instrument.  They  do  not  supersede  any  existing 
provision  to  which  they  are  not  clearly  repugnant. 

The  Amendments  to  the  United  States  Constitution  do  not  affect 
the  States,  with  the  exception  of  the  Thirteenth,  Fourteenth,  and 
Fifteenth.  The  first  ten  Amendments  were  designed  to  control 
the  action  of  Congress  or  other  branches  of  the  Federal  government 
alone.^ 

A  question  has  been  raised  in  some  of  the  States  whether  a  law 
would  be  void  as  being  opposed  to  the  spirit  of  the  Constitution. 
This  question  does  not  refer  to  a  fair  construction  of  the  words 
used,  but  to  a  supposed  "  spirit "  of  the  Constitution  where  the 
instrument  itself  is  silent.  The  courts  will  not  declare  a  limita- 
tion under  the  notion  of  having  discovered  something  in  the  spirit 
of  the  Constitution  upon  a  subject  which  is  not  even  mentioned 
in  it,6 

A  law  cannot  be  pronounced  invalid  because  it  violates  justice, 
or  is  oppressive  or  unfair,  or  because  it  is  not  justified  by  public 
necessity.'''  Still,  the  legislature  may  not  indirectly  violate  the 
Constitution  any  more  than  directly.  It  cannot,  for  example, 
authorize  one  man  to  take  the  land  of  another  for  his  private 
purposes,  although  such  an  act  is  not  directly  prohibited.  It  is 
indirectly  prohibited  by  the  rule  that  "  private  property  can  be 
taken  for  public  use "  by  the  payment  of  just  compensation. 
This  is  equivalent  to  a  declaration  that  it  shall  not  be  taken  for 

1  People  V.  Supervisors  of  Orange  *  Jaehne  v.  New  York,  128  U.  S.  189. 
County,  17  N.  Y.  235.  5  Spies  i-.  Illinois,  123  U.  S.  131,  166. 

2  Matter  of  N.  Y.  Elevated  R.  R.  Co.,  6  People  v.  Fisher,  24  Wend.  21.5,  220  ; 
70  N.  Y.  327,  342;  Matter  of  Gilbert  People  v.  N.  Y.  Central  R.  E.  Co.,  34 
Elevated  Ry.  Co.  v.  Kobbe,  LI.  361.  Barb.  123  ;  aff'd  24  N.  Y.  485. 

3  People  V.  Albertson,  55  N.  Y.  50.  ^  Brotholf  v.  O'Reilly,  74  N.  Y.  509. 


THE   SOURCES   OF   THE   LAW.  43 

private  use  on  any  terms.^  On  like  grounds,  the  legislature  can- 
not exercise  the  power  of  taxation  for  private  purposes. ^ 

If  a  law  be  in  the  end  declared  unconstitutional,  a  public  officer 
who  has  acted  under  it  will  have  no  justification  for  his  acts.  An 
unconstitutional  law  is  no  law.  The  legislature  having  by  the 
hypothesis  no  power  to  enact,  the  fact  that  it  has  gone  through 
the  forms  of  enactment  is  of  no  avail. 

A  question  like  this  cannot  come  up  in  the  English  courts  as  to 
the  power  of  Parliament,  as  its  legislative  capacity  is  wholly  with- 
out restraint.  It  might,  however,  be  presented  there  in  construing 
the  power  of  a  colonial  legislature  acting  under  a  written  instru- 
ment. It  might  come  before  the  Judicial  Committee  of  the  Privj 
Council,  the  court  of  last  resort  as  to  such  questions.  That  court 
would  avail  itself  of  a  principle,  much  resorted  to  in  the  law  of 
corporations  having  restrictions  upon  their  powers,  called  the 
doctrine  of  ultra  vires.  This  is,  that  corporate  acts  done  in  ex- 
cess of  corporate  powers  are  void.  ^  The  details  of  this  subject 
will  be  found  in  such  vs^orks  as  Cooley  on  Constitutional  Limita- 
tions and  Story  or  Pomeroy  on  Constitutional  Law. 

It  may  be  well  to  add  here  that  a  statute  is  in  general  confined 
in  its  territorial  effect  to  the  territory  of  the  sovereign  power 
which  enacts  it.  It  has  been  said  in  the  English  courts  that  it 
must  be  regarded  as  having  the  words  "  within  the  dominions  " 
inserted  in  it.^  Still  the  sovereign  power  may  by  apt  words  bind 
its  own  subjects,  though  beyond  its  territorial  limits.  This  is 
particularly  true  of  cases  arising  at  sea.  It  has  been  said  that  a 
British  Parliament  has  no  authority  to  legislate  for  foreigners  out 
of  the  dominions  and  beyond  the  jurisdiction  of  the  crown.^ 

1  Taj'lor  V.  Porter,  4  Hill,  140.  words  *  within  the  dominions  '  inserted  in 

-  Weismer  v.  Village  of  Douglas,  64  N.  it.     An  attempt  was  once  made  to  make 

Y.  91.  dealing  in  slaves  a  felony  in  every  part  of 

^  Bank  of  Ontario  v.   Larabe,  L.  R.  12  the  world,  but  the  opinion  of  all  the  legal 

App.  Cas.  575,  deciding  that  the  Quebec  authorities  was,   that  an  English   Act  of 

Act,  45  Vict.  c.  22,  was  intra  vires.    Harris  Parliament  was  binding  within  the  realm 

V.  Davies,  L.  R.  10  App.  Cas.  279.     The  of  England  only.     If,   indeed,  the  Act  of 

principle  followed  is,  that  a  colonial  legis-  Parliament  had  stated  that  all  British  sub- 

lature  is  restricted  in  the  area  of  its  powers,  jects  were  to  be  bound,  as  is  the  case  in 

Powell  V.  Apollo  Candle  Companj%  L.  R.  some  of  the  slave-dealing  acts,  or  as  is  the 

10  App.  Cas.  282  ;  Colonial  Building  Ass.  case  in  the  Royal  Marriage  Act  with  respect 

V.   Atty-Gen'l  of  Quebec,   L.   R.   9  App.  to  the  descendants  of  George  the  Second, 

Cas.  157  ;  Hodge  v.  The  Queen,   Id.  117.  there  the  case  is  different,  but  where  the 

This  case  concerned  the  power  to  pass  cer-  enactment  is  general,    as  in  the   present 

tain  police  regulations,  &c.  case,  it  does  not  extend  beyond  the  English 

*  Rosseter  y.  Cahlmann,    8  Exch.  361;  dominions."    22  L.  J.  Exch.  p.  129. 
s.  c. ,  22  L.  J.  Exch  128.     In  this   case  &  Lopez  w.  Burslem,  4  Moore,  P.  C.  C. 

Pollock,  C.  B.,  said  "  Every  Act  of  Par-  300. 
liament  must  be  understood  to  have  the 


44  THE   LAW   OF   PERSONS. 

It  is  a  general  rule  that  when  a  statute  directs  an  act  to  be 
done  within  a  specified  time,  e.  g.,  twenty  days,  the  time  is  to  be 
computed  by  excluding  the  first  day  and  including  the  last.  If 
the  last  day  be  Sunday,  the  act  must  be  done  on  Saturday,  unless 
there  be  some  provision  in  the  statute  to  the  contrary.  The 
general  rule  becomes  at  times  important  in  its  application  to  the 
Statute  of  Limitations.^ 

This  chapter  may  be  properly  closed  by  a  reference  to  the  mode 
of  citing  English  and  American  statutes  for  the  use  of  courts. 

All  of  the  acts  passed  at  a  session  of  Parliament  in  legal  view 
constitute  but  one  statute,  particular  laws  being  called  chapters. 
The  older  statutes  are  sometimes  known  by  the  name  of  the 
town  where  the  Parliament  was  held,  e.  </.,  the  statutes  of  Merton, 
Gloucester,  etc.  At  other  times,  they  are  designated  by  the  first 
words  of  the  statute,  in  Latin,  e.  g.,  Quia  emptores.  At  present, 
they  are  desig-nated  by  the  year  of  the  reign,  e.  </.,  45  &,  46,  Vic- 
toria. In  this  country  the  usual  course  is  to  designate  them  by 
the  year  and  chapter.  In  many  of  the  States,  the  statutes  have 
been  arranged  in  a  codified  form,  known  as  Revised  Statutes  or 
Revised  Laws.  The  laws  of  Congi'ess  have  been  arranged  in  the 
same  manner.  There  are  also  revised  statutes  in  England,  pub- 
lished in  fifteen  volumes  commencing  with  the  reign  of  Henry  III., 
and  coming  down  nearly  to  the  present  time.  In  a  large  number 
of  the  States,  the  rules  of  procedure  in  the  courts  have  been 
reduced  to  a  statutory  form,  known  as  Codes  of  Procedure  or  as 
Codes  of  Civil  or  Criminal  Procedure.  The  laws  of  each  session 
are  also  published  in  volumes  called  Session  Laws.  In  these, 
many  special  or  private  acts  are  set  forth,  which  do  not  at  any 
time  appear  in  "Revised  Statutes  or  Codes."  If  a  copy  of  a 
statute  is  needed  before  publication,  application  may  be  made  to 
the  Secretary  of  State,  as  depositary  of  the  statutes. 

There  is  also  published  in  England  a  chronological  table  and 
index  of  the  English  statutes  from  the  earliest  period  to  the  date 
of  publication.     This  is  a  highly  useful  book  of  reference,  (a) 

1  Nitchie  v.  Townspnd,  2  Sandf.  299  ;  the  action  was  commenced  on  July  24, 1852. 

Mygatt  V.  Washburn,  15  N.  Y.  316,  318,  The  statutory  period  being  six  years,  the 

see  opinion  of  Brown,  J.     The  cause  of  judge's  opinion  was  that  the  action  had 

action  in  his  view  arose  July  24,  1846,  and  been  brought  in  due  time. 


(a)  The  eleventh  edition  of  this  work  was  published  in  1890. 


CHAPTER  III. 

THE   RIGHTS    OF   PERSONS. 

A  "  PERSON  "  in  law  is  one  who  is  entitled  to  present  his  claim 
of  rights  to  a  court  of  justice.  His  position  in  this  respect  is 
sometimes  termed  his  "  status."  The  rules  of  the  ancient  law  were 
very  strict,  fixing  "  status "  by  an  arbitrary  standard.  Of  this, 
slavery  is  an  instance.  It  is  the  tendency  of  modern  law  to  fix 
one's  position  by  contract  rather  than  by  rule,  and  to  hold  that 
the  law  should  only  interfere  in  case  there  is  a  want  of  capacity 
on  the  part  of  the  individual  to  act  or  to  contract. 

The  rights  of  persons  are  commonly  divided  into  absolute  and 
relative.  Absolute  rights  are  such  as  appertain  to  a  person  con- 
sidered independently  of  others.  They  are,  in  the  common  law, 
the  right  of  personal  security,  the  right  of  personal  liberty,  and 
the  right  of  private  property.  A  violation  of  either  of  these 
rights  constitutes  a  legal  wrong.  The  word  "  wrong,"  as  here  used, 
does  not  involve  moral  obliquity,  but  simply  means  an  unlawful 
interference  with  a  legal  right. 

"  Duty  "  is  a  correlative  word  to  "  right."  If  A.  has  a  legal  right, 
B.  is  under  a  legal  duty  not  to  interfere  with  that  right.  "  There 
is  no  right  without  a  duty  ;  no  duty  without  a  right."  ^  It  would  be 
possible,  accordingly,  to  frame  a  system  of  law  from  the  point  of 
view  of  either  duties  or  rights  ;  but  the  latter  is  the  more  simple 
and  convenient  arrangement. 

Before  discussing  the  subject  of  personal  rights  specifically,  it 
will  be  useful  to  refer  to  some  of  the  great  state  papers  or  statutes 
in  England  by  which  such  rights  have  been  emphatically  affirmed 
or  secured. 

3Iagna  Chartd,  or  the  Great  Charter,  was  wrested  from  King 
John  by  his  barons,  at  Runnymede,  Ju\e  15,  1215.  It  is  only 
necessary  at  present  to  refer  to  one  of  its  important^  provisions, 
which  is  as  follows  :  "  No  freeman  shall  be  taken,  or  imprisoned, 
or  disseized,  or  outlawed,  or  exiled,  or  anywise  destroyed  ;  nor 
will  we  go  upon  him  nor  send  upon  him  but  by  the  lawful  judg- 

1  This  was  a  favorite  expression  of  the  the  Latin  form,  Nullum  jus  sine  officio; 
late  Dr.  Francis  Lieber.      He  was  fond  of    nullum  offi^cium  sine  jure. 


46  THE  LAW  OF   PERSONS. 

ment  of  his  peers  or  by  the  law  of  the  land.  To  none  will  we 
sell,  to  none  will  we  deny  or  delay,  right  or  justice."  ^  The  tech- 
nical expressions,  "judgment  of  his  peers"  and  "law  of  the 
land  "  were  lield  at  an  early  day  to  mean  in  criminal  cases  (of 
a  grave  nature,  viz.  felonies)  indictment  by  a  grand  jury,  and 
trial  by  a  petit  or  petty  jury  ;  and  in  civil  cases,  trial  by  jury.  A 
grand  jury  by  the  common  law  consists  of  twenty-three  persons 
or  one  less  tlian  two  full  juries,  a  majority  of  whom  may  find  an 
indictment.  An  indictment  is  a  written  accusation  presented 
under  oath  to  the  proper  court.  It  is  the  result  of  an  inquiry  into 
the  question  whether  there  is  a  sufficient  probability  that  the 
accused  has  committed  a  crime,  to  justify  a  trial.  It  is  a  legal 
device  designed  to  prevent,  as  far  as  possible,  the  trial  of  frivolous 
and  unfounded  charges  of  crime.  The  proceeding  before  the  grand 
jury  is  ex  parte  (evidence  for  the  state  only  being  heard).  The 
indictment  having  been  found,  the  trial  of  the  charge  belongs  to 
the  so-called  petty  jury,  consisting  of  twelve  men,  and  is  presided 
over  by  a  judge.  The  conclusion  or  verdict  of  the  jury  must  be 
unanimous.  This  provision  of  Magna  Charta  does  not  interfere 
with  the  trial  of  prisoners  charged  with  minor  offences,  termed 
misdemeanors,  on  the  formal  suggestion  of  a  prosecuting  officer, 
such  as  the  Attorney-General,  without  an  indictment.  This 
method  of  proceeding  is  termed  an  information. 

These  theories  of  Magna  Charta  have  been  largely  adopted  in 
the  United  States  and  form  a  part  of  our  system  of  national  jus- 
tice, as  secured  in  one  of  the  Amendments  to  the  United  States 
Constitution.^ 

The  necessity  of  unanimity  on  the  part  of  the  jury  is  so  fully 
recognized  in  this  country  that  it  has  been  decided  in  one  State 
that  a  prisoner  on  trial  for  a  capital  offence  cannot  legally  waive 
a  trial  by  twelve  jurymen,  and  that  if  he  goes  through  the  form 
of  waiver  and  is  convicted  by  eleven  jurymen,  the  judgment  will 
be  reversed  by  the  appellate  court.^  (a) 

In  civil  cases,  trial  by  jury  was  secured  by  the  Great  Charter 
in  the  common-law  courts,  but  its  provisions  did  not  extend  to 
the  courts  of  equity,  nor  to  the  ecclesiastical  courts  or  courts 
of  admiralty  where  trials  are  had  before  a  judge  alone.^ 

1  1  Stubbs'  Constit.  Hist,  of  England,  3  Cancemie  v.  Peoj)1e,  18  N.  Y.  128. 

§  155,  p.  537.  *  The  history  of  tlie  document  itself  is 

2  Art.  V.  of  Amendments.  somewhat  interesting.      It  can  be  traced 


(a)  But  a  State  statute  may  confer  upon  a  trial  he  is  found  guilty  and  sentenced  to 

the  accused  the  right  to  waive  a  trial  by  death,  the  Fourteenth  Amendment  is  not 

Jury,  and  to  elect  to  be  tried  by  the  court,  thereby  violated.     "  Due  process  of  law  " 

and  also  give  the  court  the  power  to  try  refers  to  the  law  of  the  land  in  each  State, 

the  accused  in  such  a  case.     If  after  such  Hallincrer  v.  Davis,  146  U.  S.  314. 


THE   RIGHTS    OF   PERSONS.  47 

The  Petition  of  R'rjlit  was  a  statute  enacted  at  the  session  of 
Parliament,  commencing  March  17,  1627  (3  Car.  I.).  Though 
called  a  petition  it  was  in  fact  a  law.  It  contains  eleven  sections. 
The  first  nine  sections  consist  of  a  recital  of  abuses  in  the  admin- 
istration of  public  law,  violations  of  the  Great  Charter,  etc.  The 
tenth  section  then  enacts  that  there  shall  be  no  compulsory  loan 
exacted  from  subjects  without  consent  of  Parliament ;  that  the 
people  shall  not  be  burthened  with  soldiers  or  mariners  ;  that  com- 
missions to  try  persons  by  martial  law  in  time  of  peace  shall  be 
revoked,  and  shall  not  be  granted  in  the  future.  The  principles 
of  the  Great  Charter  are  also  re-affirmed.  It  is  not  the  office  of 
this  statute  to  make  new  provisions,  but  to  restore  to  public  recog- 
nition existing  provisions  which  in  the  lapse  of  time  had  come  to 
be  disregarded  by  the  government. 

The  Habeas  Corpus  Act  was  enacted  in  the  year  1679.^  It  did  not 
originate  the  writ  of  habeas  corpus,  but  made  it  more  effective, 
and  a  more  sure  safeguard  of  liberty.  The  writ  itself  was  no  doubt 
based  on  the  great  clause  of  Magna  Charta  already  quoted.  That 
instrument  having  declared  that  a  person  should  not  be  deprived 
of  his  liberty  without  due  process  of  law,  this  writ  was  devised  at 
a  very  early  day  to  relieve  one  who  was  deprived  of  his  liberty  in 
opposition  to  the  statute.  But  it  was  not  sufficiently  effective  in 
its  provisions,  and  if  it  appeared  in  the  course  of  an  inquiry  under 
it  that  the  prisoner  was  detained  by  the  order  of  the  King,  or  of 
the  Privy  Council,  the  judges  would  look  no  further,  and  would 
refuse  to  grant  a  discharge.  The  statute  of  Charles  II.  required 
the  judges,  in  the  case  of  persons  committed  or  charged  with 
crime,  to  issue  the  writ  in  vacation  as  well  as  in  term  time,  and  to 
have  it  made  returnable  immediately,  and  it  provided  for  a  judi- 
cial examination  of  the  warrant  on  which  the  prisoner  was  held, 
for  the  purpose  of  allowing  him  to  give  bail  in  a  proper  case,  and 
with  a  view  to  his  discharge  if  there  were  no  legal  grounds  of  de- 
tention. There  were  severe  penalties  imposed  upon  officers  and 
keepers  who  should  interfere  with  the  efficient  working  of  the  writ, 
and  also  upon  any  one  who  should  re-commit  the  prisoner,  if  dis- 
charged, for  the  same  offence.  These  provisions  made  the  writ 
truly  efficacious,  and  the  bulwark  of  liberty.  The  general  provi- 
sions of  this  statute  are  adopted  by  re-enactment  in  the  various 

to  Archbishop  Laud,   and  is  believed  to  Blackstone  saw  it  in  the  hands  of  Burnet's 

have  been  taken  from  him  at  his  impeach-  executors,  and  published  a  copj'  of  it  in 

ment,  by  Warner,  Bishop  of  Rochester.   It  Oxford,  1758.     It  is  now  in  the  British 

passed  to  his   executors,  who  gave  it  to  Museum.     A  facsimile  may  be  found  in 

Bishop  Burnet.     He  says.  History  of  his  the  work  published  by  the  English  gov- 

Own  Time,  "  It  is  now  in  my  hands,  and  ernment,  called  "  Statutes  of  the  Realm." 
came   very   fairly  to  me."      Sir  William  ^  31  Car.  II.  c.  2. 


48  THE   LAW   OF   PEESONS. 

States  of  this  country.  The  original  statute  was,  however,  cir- 
cumscribed ill  its  effect  in  one  respect,  being  confined  to  persons 
charged  with  crime.  By  later  statutes  in  England,  its  provisions 
have  been  extended  to  other  cases  of  arrest  and  detention,  and 
there  are  corresponding  statutes  in  this  country.^ 

The  English  Parliament  may,  in  unquiet  times,  suspend  the 
privilege  of  habeas  corpus^  in  which  case  one  imprisoned  has  no 
means  of  legally  inquiring  whether  the  confinement  be  illegal  or 
not.  In  this  country  there  is  a  constitutional  provision  on  this 
subject :  "  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended  unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it."  ^ 

The  Bill  of  Rights,  which  was  enacted  in  1689,^  is  very  impor- 
tant in  American  law,  since  a  number  of  provisions  are  copied 
from  it  verbatim  in  the  United  States  and  State  constitutions. 
The  following  clauses  may  be  referred  to :  The  right  of  the 
subject  to  petition  the  king;  the  unlawfulness  of  raising  or 
keeping  a  standing  army  within  the  kingdom  in  time  of  peace, 
unless  with  consent  of  Parliament ;  the  right  of  subjects  to 
have  arms  for  their  defence ;  the  rule  that  freedom  of  speech, 
and  debates  or  proceedings  in  Parliament,  arS  not  to  be  im- 
peached or  questioned  in  any  court  or  place  out  of  Parliament ; 
that  excessive  bail  ought  not  to  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

There  is  an  important  advantage  obtained  by  copying  into  our 
constitutions  the  very  words  of  English  state  papers,  because  of 
the  construction  which  had  been  previously  put  upon  the  words 
by  the  courts.  Such  construction  may  properly  be  regarded  as 
becoming  a  part  of  the  constitutional  provision  itself. 

The  Act  of  Settlement  was  a  statute  enacted  in  the  Parliament 
summoned  Feb.  6,  1700.*  Its  main  object  was  to  provide  for  the 
succession  to  the  throne  after  the  death  of  William  III.  and  the 
Princess  Anne  of  Denmark  (subsequently  Queen  Anne),  the  Prin- 
cess Sophia,  Electress  of  Hanover,  and  the  heirs  of  her  body,  being 
protestants.  There  are  in  this  statute  several  provisions  of  gen- 
eral interest.  One  is  that  no  person  wlio  has  an  office  or  place  of 
profit  under  a  king,  or  receives  a  pension  from  the  crown,  shall 
be  capable  of  serving  as  a  member  of  the  House  of  Commons. 
Another  is  that  the  commissions  of  judges  are  to  be  made  during 

1  There  are  several  writs  of  habeas  corpus  ciendum.    The  last  word  directs  subviission 

known  to  the  old  law,  the  object  being  in  to  such  order  as  the  court  may  make, 
each  case  to  bring  a  person  before  a  court.  ^  Const.  U.  S.  Art.  I.  §  9. 

They  are  designated  respectively  by  ap-  3  \  ^Xm.  &  Mary,  Sess.  2,  c.  2. 

propriate  Latin  terms.      The  famous  writ         *  12  &  13  Wm.  IH.  c.  2. 
now  referred  to  is  habeas  corpus  ad  subjU 


THE   RIGHTS   OF   PERSONS.  49 

good  behavior,  and  their  salaries  ascertained  and  established,  but 
that  upon  the  address  of  both  Houses  of  Parliament  it  may  be  law- 
ful to  remove  them  ;  and  that  no  pardon  under  the  great  seal  shall 
be  pleadable  to  an  impeachment  by  the  Commons  in  Parliament. 
These  provisions  had  been  suggested  by  great  abuses  in  legislation 
and  in  the  administration  of  justice,  and  were  designed  for  their 
correction. 

There  was  an  imperfection  in  this  statute,  since  there  was  no 
provision  preventing  the  death  of  the  king  from  putting  an  end 
to  the  office  of  a  judge.  It  was  a  rule  of  the  English  law  that  the 
king  was  the  "  fountain  of  justice."  One  of  the  inferences  from 
this  proposition  was  that  when  the  king  died  all  of  the  judges  went 
out  of  office.  All  courts  were  discontinued.  To  remedy  this  evil  the 
Tenure  of  Judicial  Office  Act  was  passed.^  It  thus  happens  that 
the  tenure  of  office  of  a  judge  is  now  during  good  behavior,  notwith- 
standing the  demise  of  the  king,  unless  he  be  removed  in  accord- 
ance with  an  address  or  formal  vote  of  both  Houses  of  Parliament. 
The  English  judges  are  more  dependent  upon  Parliament  than 
the  judges  of  the  Federal  Courts  are  upon  Congress,  since  in  the 
latter  case  a  judge  can  only  be  removed  by  impeachment,  which 
is  a  species  of  trial  for  an  offence,  while  an  address  in  England  is 
nothing  more  than  a  vote  of  legislative  bodies. 

The  statutes  above  referred  to,  with  others,  and  with  general 
rules  of  public  law,  make  up  the  English  Constitution.  As  they 
originate  with  Parliament,  they  do  not  bind  it,  but  may  at  any 
time  be  repealed.  Similar  provisions  in  American  Constitutions 
may  be  made  to  serve  not  merely  as  a  check  upon  the  executive, 
as  in  England,  but  also  on  the  legislature  and  the  judiciary. 
That  branch  of  constitutional  law  which  we  term  "  constitutional 
limitations,"  has  no  existence  in  England,  and  from  the  nature 
of  the  case  cannot  have,  while  the  present  Parliamentary  system 
continues. 

These  great  principles  of  the  English  Constitution  came  to  be 
accepted  law  in  a  number  of  the  colonies  before  the  Revolution. 
Connecticut  adopted  Magna  Charta  as  early  as  1639 ;  New  York, 
in  1691  and  1708.  It  was  maintained  firmly  that  taxes  were  not 
to  be  levied  without  the  consent  of  the  legislative  department  of 
the  colonies.  It  was  a  prevalent  view  in  England  that  no  Act  of 
Parliament  was  binding  upon  the  colonies,  unless  they  were 
specially  named  in  the  Act.  If  named,  they  were  subject  to  the 
legislation  of  England,  as  being  a  portion  o£  the  country.  The 
colonies  so  far  as  they  were  left  to  themselves  legislated  in  their 
own  way,  not  interfering  with  the  prerogative  of  the  king  or  im- 

1  1  Geo.  III.  c.  23,  A.  D.  1760. 
4 


50  THE    LAW   OF   PERSONS. 

pairing  their  tie  of  allegiance  to  the  mother  country.^  The  power 
of  legislation  was  deemed  to  be  quite  different  in  the  case  of 
a  colony  of  English  subjects  and  in  that  of  a  conquered  country. 
In  the  former  case,  the  people  of  the  colony  could  only  be  taxed 
by  the  Parliament,  or  by  and  with  the  consent  of  some  representa- 
tive body  of  the  people  of  the  colony,  properly  assembled  by  the 
authority  of  the  king  or  crown  ;  in  the  case  of  a  conquered  coun- 
try, they  might  be  taxed  under  the  right  of  conquest,  without  the 
action  of  Parliament  or  of  a  colonial  legislature.^ 

The  constitutional  safeguards  of  the  rights  of  individuals 
worked  out  in  England  appear  to  a  considerable  extent  both  in 
the  United  States  Constitution  and  in  those  of  the  respective 
States.  Only  such  as  concern  the  right  of  personal  security  and 
freedom  will  be  stated  in  this'  connection  ;  such  as  relate  prin- 
cipally to  property  will  be  treated  hereafter. 

Provisions  on  the  subjects  of  personal  security  and  personal 
liberty  will  be  found  both  in  the  United  States  Constitution 
itself  and  in  the  Amendments.  There  is  an  important  distinc- 
tion between  the  effect  of  such  Amendments  as  are  prior  to  the 
Thirteenth,  and  the  later  ones,  viz.,  the  Thirteenth,  Fourteenth, 
and  Fifteenth.  The  first  twelve  concern  the  working  of  the 
United  States  government,  and  do  not  bind  the  action  of  the 
States.3  A  Territory,  however,  is  governed  by  these  Amend- 
ments.* (a)  Accordingly,  the  first  branch  of  the  Seventh  Amend- 
ment to  the  effect  that  "  in  suits  at  common  law,  where  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,"  does  not  extend  to  the  State  courts.^ 

1  The  colonists  grew  restive  very  early,  ions  of  Attorney  and  Solicitor-General  on 
Evelyn,  then  a  member  of  the  Privy  the  Extension  of  the  Laws  of  England  to 
Council,  in  his  Diary,  under  date  of  Aug.  3,     the  Colonies,  May  18,  1724. 

1671,  says  that  the  council  sent  a  trusted  ^  Livingston  v.  Moore,  7  Pet.  469,  551; 
messenger  "  to  inform  them  of  the  condi-  Fox  v.  The  State  of  Ohio,  5  How.  (U.  S.) 
tion  of  the  colonies,  and  whether  they  410,  434  ;  Twitchell  v.  The  Common- 
were  of  such  power  as  to  be  able  to  resist  wealth,  7  Wall.  321  ;  United  States  v. 
his  Majesty  and  declare  for  themselves  as  Cruikshank,  92  U.  S.  542  ;  Spies  v.  lUi- 
indejoendcnt  of  the  Crown,  which  we  were  nois,  123  U.  S.  131,  166. 
told,  and  which  of  late  years  made  them  *  Webster  v.  Keid,  11  How.  (U.  S.) 
refractory."      He  adds,  "Colonel  Middle-  437. 

ton,  being  called  in,  assured  us  they  might  ^  Edwards  v.    Elliott,   21   Wall.   532  ; 

be  curbed  by  a  few  of  his  Majesty's  first-  Walker  v.  Sauvinet,  92  U.  S.  90  ;  Pearson 

rate  frigates."  v.  Yewdall,  95  U.  S.  294, 

2  Chalmers'  Colonial  Opinions;   Opin- 


(17)  See  also  Reynolds  v.  United  States,  criminal  cases  arising  in  the  Territories. 

98  U.  S.  145,  154.     In  this  case  it  seems  The  provisions  in  the  Constitution  relating 

to  be  recognized  without  question  that  the  to  trial  by  jury  are  in  force  in  the  District 

Sixth  Amendment  to  the  Constitution  es-  of  Columbia.     Callau  v,  WilsoE,  127  U.  S. 

tablishes  the  right   to   trial  by  jury   in  540. 


THE   RIGHTS   OF   PERSONS.  51 

Tlie  latter  clause  of  the  same  Amendment,  which  declares  that 
"  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States  than  according  to  the  rules  of  the  com- 
mon law,"  applies  to  a  review  by  the  Supreme  Court  of  the  United 
States  of  a  trial  in  a  State  court.^ 

On  the  other  hand,  the  last  three  Amendments  which  were  the 
outcome  of  the  civil  war,  bind  the  States,  as  they  are  expressly 
named.  The  first  paragraph  of  the  Fourteenth  Amendment  is  of 
the  utmost  importance.  After  declaring  what  persons  are  citizens 
of  the  United  States  and  of  a  State,  it  proceeds  :  "  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States  ;  nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws." 

Turning  now  to  the  body  of  the  Constitution,  there  will  be  found 
provisions  of  the  kind  now  under  consideration,  binding  the  action 
of  a  State  as  well  as  of  Congress,  or  prescribing  a  rule  for  the 
action  of  the  judicial  power  of  the  United  States.  The  whole  sub- 
ject is  thus  capable  of  a  twofold  sub-division :  (1)  clauses  acting 
upon  the  general  government ;  (2)  clauses  acting  upon  the  States. 

Constitutional  Directions  and  Restrictions  acting  upon  the 
General  Government. 

These  are  capable  of  classification  under  a  number  of  general 
heads. 

I.  —  Restrictions  upon  improper  or  vicious  legislation  usurping 
judicial  methods. 

(1)  No  bill  of  attainder  shall  be  passed. 

(2)  No  ex  post  facto  law  shall  be  passed. 

II.  —  Regidations preventing  unnecessary  or  harmful  interference 
by  Congress  tvith  the  freedom  of  the  individual. 

(1)  Congress  shall  make  no  law  respecting  the  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof. 

(2)  Congress  shall  make  no  law  abridging  the  freedom  of 
speech  or  of  the  press. 

(3)  Congress  shall  make  no  law  abridging  the  right  of  the 
people  peaceably  to  assemble  and  to  petition  the  government  for 
a  redress  of  grievances. 

(4)  No  soldier  shall  in  time  of  peace  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war  but 
in  a  manner  to  be  prescribed  by  law. 

1  Justices  V.  Murray,  9  Wall,  274. 


52  THE   LAW   OF   PERSONS. 

(5)  The  right  of  the  people  to  keep  and  bear  arms  shall  not 
be  infringed. 

111. Restrictions  affecting  the  administration  of  justice. 

(1)  The  privilege  of  the  writ  of  habeas  corjms  shall  not  be 
suspended  (except  in  special  enumerated  cases). 

(2)  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  warrants  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  parti- 
cularly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

(3)  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury ;  and  such  trial  shall  be  held  in  the  State  where 
the  said  crimes  shall  have  been  committed  ;  but  when  not  com- 
mitted within  any  State,  the  trial  shall  be  at  such  place  or  places 
as  the  Congress  may  by  law  have  d'rected. 

(4)  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law. 

(5)  Regulations  as  to  the  methods,  progress,  and  results  of  a 
criminal  trial. 

1.  No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or 
in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger. 

2.  Proceedings  in  all  criminal  prosecutions. 

a.  The  accused  shall  enjoy  the  right  to  be  confronted  with 
tlie  witnesses  against  him ;  b.  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor ;  and  c.  to  have  the  assistance 
of  counsel  for  his  defence;  d.  no  person  shall  be  compelled  in 
any  criminal   case   to   be   a   witness  against  himself. 

3.  No  person  shall  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb. 

(6)  General  regulations. 

1.  No  person  shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law. 

2.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

(7)  Trials  in  the  Federal  courts  in  civil  actions. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 


THE   RIGHTS   OF   PERSONS.  53 

court  of  the  United  States,  thau  according  to  the  rules  of  the 
common  law. 

For  purposes  of  explanation  we  shall  review  some  of  these 
particulars. 

I.  —  (1)    No  bill  of  attahider  shall  be  passed.  («) 

The  prohibition  as  to  such  legislation  extends  to  the  States  as 
well.  The  meaning  of  the  word  "  bill  "  in  this  clause  is  "  law." 
The  vicious  character  of  such  legislation  consists  in  the  fact, 
that  it  enacts  guilt  by  statute,  instead  of  establishing  it  by  judi- 
cial proceedings  and  a  recognized  method  of  trial. ^  Before  the 
adoption  of  the  United  States  Constitution,  bills  of  attainder 
could  be  validly  enacted  by  a  State  legislature  if  there  were  no 
restrictions  to  prevent  it  in  the  State  constitution.^  A  bill  of 
exemption  from  liability  is  not  a  bill  of  attainder.^  An  Act  of 
Congress  which  provided  that  no  person  should  be  admitted  to 
the  bar  of  the  Supreme  Court  of  the  United  States  unless  he 
took  a  specified  oath,  was  declared  to  be  within  this  principle.* 

Many  cases  arose  in  New  York,  and  other  States  after  the 
Revolutionary  War,  under  various  acts  of  attainder  passed  in  the 
States.  The  authorities  cited  show  that  bills  of  this  kind  di- 
rected against  a  class  of  persons  are  prohibited,  as  well  as  such  as 
name  individuals. 

When  the  punishment  is  less  than  death,  the  statute  is  called 
a  bill  of  pains  and  penalties.  The  prohibition  equally  applies 
whether  the  punishment  be  absolute  or  conditional.^  The  great 
object  of  the  constitutional  provision  is  to  secure  the  citizen 
against  deprivation  of  his  rights  for  past  conduct  by  legislative 
enactment  under  any  form,  however  disguised.^ 

(2)  No  ex  2)ost  facto  law  shall  be  passed.  (6)  The  phrase  ex 
post  facto  law,  is  borrowed  from  the  common  law,  wliere,  how- 
ever, it  has  a  different  meaning  from  that  which  is  attached  to  it 
in  the  United  States  Constitution.  Its  true  sense  is  to  be  sought 
in  the  decisions  of  the  courts  in  interpreting  the  Constitution. 

1  A  striking  instance  of  this  is  found  ^  Drehman  v.  Stifle,  8  Wall.  595. 

in  the  statutes  of  Henry  VIII,     The  cook  *  Ex  imrte  Garland,  4  Wall.  3-3.3.     See 

of  the  Bishop  of  Rochester  having  mingled  also  Murphy,  etc.  Oath  Cases,  41  JIo.  339, 

poison  with  the  food  prepared  by  him  for  388  ;  Cummings  y.  The  State  of  Missouri, 

the  bishop's  guests.   Parliament  passed  a  4  Wall.  277. 

law  without  any  judicial  proceedings, —  ^  Cummings  r.  The  State  of  Missouri, 

that  the  cook  be  boiled  to  death.  supra. 

2  Cooper  V.  Telfnir,  4  Dall.  14  ;  Hylton  ^  Cummings  v.  The  State  of  Missouri, 
V.  Brown,  1  Wash.   29S,  307  ;  De  Lancey  supra. 

V,  McKeen,  Id.  354. 


{a)  Constitution  of  the  United  States,  [h)  Id. 

Art.  I.  §  9,  cl.  3. 


54  THE   LAW   OF   PERSONS. 

A  distinction  must  be  taken  between  a  law  which  is  simply 
retrospective  and  one  which  is  ex  post  facto.  The  word  "  retro- 
spective" standing  by  itself  is  a  broad  term  including  all  laws 
which  act  upon  a  past  transaction,  and  therefore  includes  both 
civil  and  criminal  cases.  The  phrase  ex  post  facto  is  confined  to 
such  laws  as  act  backward  upon  a  crime,  and  operate  in  any  way 
to  the  disadvantage  of  the  accused.  Other  laws  not  having  this 
element  of  "  disadvantage  "  might  be  retrospective,  but  they  would 
not  be  ex  post  facto. 

The  modes  in  which  a  law  may  be  ex  post  facto  are  various. 
An  attempt  was  made  in  an  early  case  to  classify  them.  Ac- 
cording to  this  classification,  which  is  useful  though  not  exhaus- 
tive, the  expression  includes  :  (1)  Every  law  that  makes  an  act 
done  before  the  passing  of  the  law,  which  was  innocent  when 
done,  criminal,  and  punishes  such  act ;  (2)  every  law  that 
aggravates  a  crime  or  makes  it  greater  than  it  was  when  com- 
mitted ;  (3)  every  law  that  changes  the  punishment  and  in- 
flicts a  greater  punishment  tlian  the  law  annexed  to  the  crime 
when  committed  ;  (4)  every  law  that  alters  the  legal  rules  of  evi- 
dence, and  receives  less  or  different  testimony  than  the  law 
required  at  the  time  of  the  commission  of  the  offence  in  order  to 
convict  tlie  offender.^  These  enumerations  should  be  regarded 
only  as  instances.  The  broad  and  comprehensive  principle  is, 
that  every  change,  be  it  in  the  substantive  law  or  in  procedure, 
which  alters  the  situation  of  the  accused  to  his  disadvantage,  is  ex 
post  facto  and  void  by  the  rule  of  the  Constitution.^  (a)  The  question 
whether  the  change  in  the  law  is  or  is  not  to  the  prisoner's  disad- 
vantage, is  a  question  for  the  court.  A  change  in  the  law  which 
simply  enlarges  the  class  of  persons  who  may  be  competent 
to  testify  in  criminal  cases  does  not  fall  within  the  principle.^ 
Such  an  enlargement  is  but  a  variation  in  a  mode  of  procedure, 
resting  from  time  to  time  upon  varying  legislative  views  of 
public  policy,  and  is  something  in  wliich  the  accused  has  no 
vested  right. 

In  accordance  with  this  principle,  it  has  been  decided  that  a  legis- 
lature cannot  change  retrospectively  tJie  kind  of  punishment,  as, 
for  example,  to  substitute  hard  labor  for  hanging,  or  vice  versaJ^ 

1  Calder  v.  Bull,  3  Ball.  386,  390.  8  Hopt  v.   Utah,  siqira,  p.   590.      See 

2  Kring  v.  Missouri,  107  U.  S.  221.  This     also  Gut  v.  State,  9  Wall.  35. 

decision  was  made  by  a  narrow  majority  *  Hartung  v.    The   People,    22  N.  Y. 

of  the  judges.     It,  however,  seems  to  be  95 ;    Fletcher    v.    Peck,    6    Cranch,    87, 

thoroughly  sound  and  conservative.     See  138. 
also  Hopt  V.  Utah,  110  U.  S.  574,  588,  590. 


(a)  Medley,  Petitioner,  134  U.  S.  160. 


THE   RIGHTS   OF   PERSONS.  55 

If  the  law  plainly  reduce  or  remit  a  part  of  the  punish- 
ment, it  is  not  unconstitutional.  This  is  plainly  implied  in  the 
general  statement  that  the  change  must  operate  to  the  pris- 
oner's disadvantage.  It  has  also  been  so  held  in  a  number  of 
cases.i 

It  is  not  ex  post  facto  to  pass  a  law  which  requires  the  past 
history  of  a  criminal  to  be  taken  into  consideration  in  prescribing 
punishment,  even  though  that  history  disclose  a  prior  conviction 
for  a  criminal  offence.  The  object  of  such  a  law  is  to  have  the 
fact  brought  to  the  attention  of  the  court,  that  the  prisoner  is  a 
persistent  criminal  towards  whom  mercy  is  misplaced,  and  that 
punishment  has  done  him  no  good.^  It  has  been  held  that  a 
statute  providing  for  a  correction  of  an  erroneous  judgment  in 
a  criminal  action  is  not  ex  jyost  facto. ^ 

If  a  law  act  improperly  upon  past  offences,  and  at  the  same 
time  provide  a  rule  for  the  future,  it  may  be  void  so  far  as  it  is 
ex  post  facto,  and  valid  in  its  other  applications.*  A  statute  pro- 
viding retrospectively  for  the  seizing  and  destruction  of  liquors, 
being  a  civil  proceeding,  would  not  be  ex  post  facto.  The  matter 
must  be  criminal,  in  order  that  the  question  may  arise.^  Every 
law  which  can  be  enacted  by  any  authority  in  this  country, 
whether  it  be  by  Congress,  State  or  territorial  legislature,  or 
be  found  in  a  State  constitution,  will  be  void  if  ex  post  facto  and 
may  be  so  decided  as  to  each  instance  by  the  Supreme  Court  of 
the  United  States.^ 

In  accordance  with  these  general  principles,  it  has  been  held 
by  the  Supreme  Court  of  the  United  States  that  a  State  statute 
making  solitary  confinement  applicable  to  a  prior  criminal  of- 
fence, and  making  the  time  uncertain  (within  a  range  of  four 
weeks)  as  to  when  the  sentence  of  death  should  be  carried  out, 
is  unconstitutional  and  void."^ 

IL  —  (1)  Congress  shall  make  no  law  respecting  the  establish- 
ment of  religion  or  prohibiting  the  free  exercise  thereof,  («) 

It  will  be  observed  that  this  clause  is  limited  by  express  terms 
to  the  action  of  Congress.  There  is  nothing  in  the  United  States 
Constitution  to  prevent  the  establishment  of  religion  by  a  State. 

1  Haire  v.  State  of  Nebraska,  16  Neb.  ^  As  to  Congress,  see  Constitution  of 
601;  Melnturfy.  State,  20  Tex.  App.  335  ;  the  United  States,  Art.  I.  §  9,  cl.  3.  As 
Garvey's  Case,  7  Col.  384  ;  State  v.  Kent,  to  the  States,  Art.  I.  §  10,  cl.  1.  The 
65  N.  C.  311.  nature  of  an  ex  post  facto  law  is  well  stated 

2  The  People  v.  Raymond,  96  N.  Y.  38.  in  the  case  of  Lindzey  v.  State,  65  Miss. 

3  Ex  parte  Bethurum,  66  Mo.  545.  542. 

4  Jaehne  v.  The  People,  128  U.  S.  189.  ^  Medley,  Petitioner,  134  U.  S.  160. 

5  McLean  v.  Bann,  70  Iowa,  752. 


{a)  Art.  I.  of  Amendments. 


56  THE   LAW   OF   PERSONS. 

It  was  thought  best  by  the  people  of  the  United  States  to  leave 
the  whole  subject  of  religious  liberty  to  the  action  of  the  respec- 
tive State  s.i 

The  constitutions  of  the  respective  States  so  far  as  they  refer 
to  religion  are  framed  in  a  spirit  of  liberality  so  as  not  to  offend 
liberty  of  conscience  or  of  worship.^  In  the  constitution  of  New 
Hampshire  (1792,  as  amended),  it  was  required  that  certain 
officers  as  well  as  members  of  the  legislature  should  "  be  of  the 
Protestant  religion.''  ^  In  practice  this  test  has  never  been  ap- 
plied, and  the  constitutional  provision  has  been  a  dead  letter.^ 
Some  of  the  State  constitutions  require  that  no  person  shall  be 
compelled  to  pay  tithes  or  taxes  for  supporting  ministers  or  sus- 
taining churches.*^ 

The  clause  in  the  United  States  Constitution  concerning  reli- 
gious liberty  cannot  be  invoked  by  the  people  of  a  Territory  to 
justify  on  the  pretence  of  religion,  immoral  overt  acts,  contrary 
to  the  laws  of  Congress ;  as  for  example,  plural  marriages.^  (b) 
Congress  has  full  and  complete  power  over  the  territories  (subject 
to  restrictions  of  the  Constitution  upon  its  legislation)  and  may 
either  legislate  for  them  dii'ectly,  or  declare  an  act  of  a  terri- 
torial legislature  void,  or  validate  a  void  statute  enacted  by  such 
legislature.^ 

(2)  Congress  shall  make  no  law  abridging  the  freedom  of  speech 
or  of  tlie  press,  (c) 

The  object  of  tiiis  clause,  as  it  imports  in  its  very  phraseology, 
was  to  secnvQ  freedom  of  speech  and  of  the  press.  This  expres- 
sion can  only  be  fairly  held  to  mean  freedom  to  do  a  lawful  act. 
It  cannot  be  extended  to  immoral  publications,  as,  for  example, 

1  Permoli  v.  First  Municipality,  3  How.  *  Remarks  of  a  majority  of  the  court, 
U.  S.  589,  609.     The  new  States  admitted     53  N.  H.  p.  130. 

since  the  adoption  of  the  United   States  ^  Constitution  of  Iowa,  Bill  of  Rights, 

Constitution  stand  on  the  same  footing  as  Art.    1,    §    3,    considered    in    Moore    v. 

the  original  thirteen  States.     Id.  Monroe,  64  la.   367,   368.     See  also  con- 

2  Constitution  of  New  York,  Art.  I.  struction  of  Constitution  of  Ohio  as 
§  3,  Constitution  of  N.  J.,  Art.  I.  §  3,  to  religious  instruction  in  schools,  (a) 
Constitution  of  Ohio,  Art.  I.  §  7,  and  other  Board  of  Education  v.  Minor,  23  Ohio  St. 
States.  211. 

'^  This  expression  was  construed  in  the  ^  Reynolds  v.  United  States,  98  U.  S. 

case  of  Hale  v.  Everett,  53  N.  H.  9.     The  145. 

dissenting  opinion  of  Doe,  J.,  on  p.  133  et  "^  National  Bank  v.  County  of  Yankton, 

seq.,  is  remarkable  for  its  historical  infor-  101  U.  S.  129. 
mation. 


{a)  See  Constitution  of  Wisconsin,  Art.  is  a  note  upon  the  subject  of  religious  in- 

X.   §  3.     Also  Art.    I.    §  18.     These   sec-  struction  in  public  scliools,  citing  all  the 

tions  were  construed  in  State  v.  District  authorities. 

School    Board  of  Edgerton,  76  AVis.  177.  (h)  Davis  v.  Beason,  133  U.  S.  333. 

s.  c.  29  Am.  Law  Reg.  n.  s.  286,  where  there  (c)  Art.  I.  of  Amendments. 


THE   EIGHTS   OF   PERSONS.  57 

obscene  publications,  (a)  It  has  been  held  that  the  test  of  obscenity 
is,  whether  the  tendency  of  the  matter  is  to  defame  and  corrupt 
the  morals  of  those  whose  minds  are  open  to  such  influences,  and 
into  whose  hands  the  publications  might  fall.  A  law  prohibiting 
the  deposit  of  such  letters  in  the  mail  is  constitutional.^  (6) 

A  letter  vulgar,  libellous,  and  imputing  an  atrocious  crime  is 
not  necessarily  obscene.^ 

(3)  and  (4)  These  provisions  scarcely  need  comment.^  The  right 
to  petition  does  not  include  such  petitions  as  are  in  their  nature 
malicious  and  designed  to  cause  injury."*  The  clause  concerning 
quartering  soldiers  in  time  of  peace  upon  private  citizens  is  not 
likely  to  be  a  practical  subject  under  our  system,  though  under  an 
arbitrary  government  it  might  be  made  a  means  of  intolerable 
oppression.  It  was  inserted  in  the  Constitution  in  its  present  form 
as  borrowed  from  the  "  Petition  of  Right "  adopted  by  the  English 
Parliament  in  the  time  of  Charles  I. 

(5)  A  well-regulated  militia  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed.  (rZ) 

This  clause  is  drawn  with  considerable  care,  as-  it  purports  to 
give  the  reason  for  the  reserved  right  of  the  people  to  keep  and 
bear  arms.  It  is,  that  there  may  be  a  well-regulated  militia  for 
the  purpose  of  public  security.     The  clause  lends  no  sanction  to 

1  United  States  v.  Bennett,  16  Blatch.  States  v.  Loftis,  8  Sawy.  C.  Ct.  194  ;  and  in 

338,  construing  U.   S.  Rev.   St.  §  3893,  United  States  v.  Comerford,  25  Fed.   R. 

as  amended  by  act  of  July  12,  1876.     The  902. 

true  construction  of  this  act  has  been  the  ^  United  States  v.  Wightman,  29  Fed. 

subject  of  great  judicial  controversy.      A  R.  636.  (c) 
sealed  letter  is  said  to  be  within  the  statute  ^  See  a?i(!e,  p.  51    3  and  4). 

in  United  States  v.  Gaylord,  17  Fed.  R.  *  Vanarsdale  v.  Laverty,  69  Pa.  St.  103. 

438  ;  United  States  v.  Hanover,  Id.  444  ;  The   common-law    right   to    hold   public 

United  States  v.  Britton,  Id.  731  ;  United  meetings  and  the  condition  nnder  which  it 

States  V.  Morris,  18  Fed.  R.  900  ;  and  United  may  be  exercised  is  elaborately  considered 

States  V.   Thomas,    27  Fed.  R.   682.     An  in  an  article  in  the  Contemporary  Review, 

opposite  view  is   maintained   in    United  March,  1889,  by  A.  V.  Dicey,  Esq. 


{a)  Nor  does  it  justify  libel  or  slander  adds  the  word  "  letter  "  to  the  former  law, 

or  acts  which  affect  the  standing,  reputa-  and  it  has  been  construed  to  forbid  the 

tion,  or  pecuniary  interests  of  individuals,  transmission  through  the  mails  of  private 

Cooley,    Constitutional    Limitations   (6th  sealed    letters    of    an    obscene   character, 

ed.),  p.  518.  United  States  v.  Martin,  50  Fed.  R.  918  ; 

(h)  Harman  v.  United  States,  50  Fed.  In  re  Wahll,  42  Fed.  R.  822.     It  is  inter- 

R.  921.  esting  to  note  that  after  the  passage  of  this 

(c)  The  question  whether  a  sealed  letter  a7iiendnient  the   United    States   Supreme 

is  within  the  statute,  U.  S.  Rev.  St.  §  3893,  Court,  in  a  case  arising  prior  to  its  pas- 

as  amended  by  the  act  of  July  12,  1876,  has  sage,  held  that  a  private  sealed  letter  was 

been  set  at  rest   by  another   amendment  not  within  the  original  statute.     United 

(U.S.  Statutes  1887-8,  p.  496,  ch.  1039,  ap-  States  v.  Chase,  135  U.  S.  255. 

proved  Sept.  26,  1888).     This  amendment  (d)  Art.  II.  of  Amendments. 


58  THE   LAW   OF   PERSONS. 

the  view  that  concealed  arms  may  be  worn,  whether  for  the  al- 
leged purpose  of  self-defence  or  not.  The  act  of  carrying  con- 
cealed weapons  may  lawfully  be  prohibited.^ 

III. (1)    The  privilege  of  the  writ  of  habeas  corpus  shall  not 

be  suspended  (except  in  some  specially  enumerated  cases). 

When  this  privilege  is  suspended,  there  is  no  available  method 
of  determining  before  a  court  or  judge  whether  an  arrest  is  law- 
ful. No  regular  action  can  be  brought  by  the  prisoner  against 
the  person  holding  him  in  custody.  There  was  at  one  time  such 
a  writ  to  "  replevy  a  man  "  —  de  Tiomine  rejjlegiando  —  but  this 
method  is  now  obsolete.  A  suspnsion  of  the  privilege  of  the  writ 
of  habeas  corpus  practically  suspends  all  remedies  for  relief  on  the 
part  of  prisoners. 

It  was  wise  to  take  away  from  the  government  the  power  to  sus- 
pend the  privilege  of  this  writ  except  in  extraordinary  emergencies 
where  the  public  safety  requires  it.  It  will  be  observed  that  the 
language  of  the  Constitution  applies  to  the  suspension  of  the  privi- 
lege of  the  writ,  and  not  to  the  writ  itself.  The  legal  effect  of 
this  is  that  the  writ  issues  as  a  matter  of  course,  and  then,  upon 
the  return  by  the  custodian  of  the  grounds  of  detention,  the 
court  decides  whether  the  applicant  should  proceed  farther.^ 

It  is  not  fully  settled  whether  the  power  to  suspend  belongs  to 
the  executive  or  legislative  branch  of  the  government.  The  bet- 
ter opinion  is  that  it  is  legislative.^  A  law  was  passed  by  Con- 
gress during  the  late  Civil  War  authorizing  the  President  to 
suspend  it.*  The  President  made  a  proclamation  to  this  effect 
Sept.  15,  1863.^  The  Act  of  Congress  applied  to  the  case  of  a 
pei'son  detained  by  the  military  authorities  as  a  volunteer  in  the 
service  of  the  United  States,^  but  not  to  one  illegally  enlisted,  not 
charged  with  any  offence  against  the  government.'^ 

(2)  No  warrants  shall  issue  but  upon  probable  cause,  supported 
by  oath  or  affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized,  (a) 

1  Haile  v.  The  State,   38   Ark.     564  ;  *  Act  of  1863,  12  Stat,  at  Large,  755. 

State  V.  Wilforth,  74  Mo.  528.     The  gen-  ^  This  suspension  was  declared  valid  in 

eral   subject   is   discussed  in  Andrews  v.  the    Matter   of  Dann,   25  How.    Pr.  467. 

State,  3  Heisk.    (Tenn.)  165;  English  v.  Other  authorities  bearing  on  this  general 

State,  35  Tex.  473  ;  State  v.  Newsom,  5  subject  are  Ex  parte  Field,  5  Blatch.  63  ; 

Ired.  (N.  C.)  Law,  250.  McCall  v.  McDowell,  1   Abb.  U.  S.  212  ; 

•■'  Ex  parte  Milligan,  4  Wall.  3.  Ee  Fagan,  2  Sprague,  91  ;  Griffin  v.  Wil- 

*  See  authorities   collected  in   2  Abb.  cox,  21  Ind.  370;  Ex  parte  Collier,  6  Ohio 

Nat.  Dig.  p.  649,  note ;   also  Warren   v.  St.  65. 

Paul,  22  Ind.  276  ;  In  re  Kemp,  16  Wis.  6  j^e  Oliver,  17  Wis.  681. 

359.  '  T  People  v.  Gail,  44  Barb.  98. 


(a)  Art.  IV.  of  Amendments. 


THE   RIGHTS   OF    PERSONS.  59 

The  "  probable  cause  "  referred  to  in  this  provision  must  be  sub- 
mitted to  the  committing  magistrate  on  the  oatli  of  the  real  ac- 
cuser, and  not  on  that  of  one  who  obtains  information  from  him.^ 
Facts  must  be  stated  in  the  affidavits  and  not  mere  conclusions  of 
lavv.2  It  is  not  the  policy  of  the  United  States  Constitution  to 
prohibit  search-warrants,  but  to  regulate  their  use.^ 

(3)  and  (4)  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury,  and  such  trial  shall  be  held  in  the  State 
where  the  said  crimes  shall  have  been  committed ;  but  when  not 
committed  within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed,  (a) 

This  clause  of  the  Constitution  should  be  taken  in  connection 
with  the  Sixth  Amendment :  "  In  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  previously 
ascertained  by  law." 

The  meaning  of  the  term  "  jury,"  as  here  used,  must  be  ascer- 
tained in  the  common  law.  A  trial  jury,  when  the  Constitution 
was  adopted,  consisted  of  twelve  men,  who  could  only  bring  in 
a  verdict  either  favorable  or  unfavorable  to  tlie  accused,  when 
unanimous. 

The  jury  originally  consisted  of  witnesses  to  the  alleged  criminal 
act,  and  were  of  course  drawn  from  the  vicinity  of  the  scene  of  the 
crime.  This  requirement  of  witnesses  after  a  time  disappeared, 
thougli  it  still  remained  true  that  the  jury  must  be  taken  from  the 
vicinage.  This  in  the  end  resolved  itself  into  a  county.  The  Con- 
stitution proceeds  upon  this  principle  not  only  in  the  requirement 
of  a  jury,  but  also  in  th&  direction  that  they  must  come  from  the 
State  or  district.  The  trial  must  take  place  in  the  State,  and  the 
jury  must  come  from  the  State,  etc. 

These  provisions  are  solely  applicable  to  trials  in  the  Federal 
courts.*  It  for  a  long  time  remained  a  question  whether  these 
rules  extended  to  the  District  of  Columbia,  it  being  contended  by 
some  that  the  constitutional  requirement  is  solely  applicable  to^ 
the  States,  except  where  the  crime  is  committed  at  sea.  This 
narrow  interpretation  has  been  recently  discarded  by  the  Supreme 
Court.  The  District  of  Columbia,  and,  by  parity  of  reasoning, 
other  districts  not  within  the  exclusive  jurisdiction  of  the  States, 

1  In  the  Matter  of  a  Rule  of  Court,  3  ^  Collins  v.  Lean,  68  Cal.  284, 
Woods,  C.  Ct.  502.  4  Nashville,  &c.  Railway  v.  Alabama, 

2  Re  Coleman,  15  Blatch.  406.  128  U.  S.  96,  101. 


(a)  Art.  III.  §  2,  cl.  3,  Constitution. 


60  THE   LAW   OF   PERSONS. 

are  governed  by  the  constitutional  provision.^  It  is  further  estab 
lished  tliat  the  word  "  crime,"  as  used  in  the  Constitution,  not 
only  inchides  offences  of  a  high  grade,  or  felonies,  but  also  some 
minor  offences  of  the  rank  of  misdemeanors. ^ 

In  comjtlying  with  these  provisions,  it  is  not  sufficient  to  show 
that  the  accused  is  accorded  in  some  stage  of  the  prosecution  the 
right  of  trial  by  jury.  This  right  should,  as  a  rule,  be  accorded 
in  the  trial  court  from  the  first  moment,  and  not  for  the  first  time 
on  an  appeal ;  otherwise,  though  innocent,  he  might  be  deprived 
of  his  liberty,  during  the  pendency  of  an  appeal.^ 

There  are  some  petty  offences  which  it  has  been  the  practice 
for  centuries  for  magistrates  to  dispose  of  without  juries.  It  is  to 
be  presumed  that  the  constitutional  provision  was  not  made  for 
the  purpose  of  embracing  these,  but  rather  that  these  were  to  be 
left  in  the  same  condition  as  at  common  law."* 

(5)  Regulations  as  to  the  methods,  progress,  and  results  of  a 
ciiminal  trial. 

1.  "  No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise i})famous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except,"  etc. 

This  clause,  for  the  purpose  of  initiating  a  criminal  trial,  divides 
crimes  into  two  classes,  infamous  and  non-infamous.  In  the  case 
of  infamous  crimes,  there  must  be  an  indictment  by  a  grand  jury, 
but  where  the  crime  is  not  infamous,  there  is  no  constitutional 
direction.     The  method  may  be  established  by  law. 

An  infamous  crime  is  characterized  by  the  punishment  which 
attends  conviction.  If  the  punishment  be  imprisonment  in  a  State 
prison  or  penitentiary,  with  or  without  hard  labor,  the  crime  is 
infamous,  and  it  can  only  be  tried  in  case  there  be  an  indictment 
by  a  grand  jury,^ 

By  the  term  "  grand  jury  "  is  meant  a  body  of  men  selected  by 
law,  consisting  of  one  less  than  two  full  juries  (viz.,  twenty-three), 
whose  function  it  is  to  inquire  in  advance  of  the  trial  of  one 
accused  of  crime,  whether  there  is  sufficient  apparent  reason  why 
he  should  be  brought  to  trial.  It  is  a  legal  device  interposed 
between  the  prosecutor  and  the  accused,  with  a  view  of  shield- 
ing a  prisoner  from  the  annoyance  and  injury  of  an  unfounded 
accusation.     Twelve  of  the  number,  at  least,  must  concur  in  the 

1  Callan  v.  Wilson,  127  U.  S.  540,  550.  605  ;  Duffy  v.  The  People,  6  Hill,  75  ; 
As  to  tlie  Territories,  see  Rej'iiolds  v.  Callan  v.  Wilson,  127  U.  S.  540  ;  opinion 
United  States,  98  U.  S.  145,  154.  of  Harlan,  J.,  pp.  552,  553. 

2  Callan  y.  Wilson,  SM^'^a,  p.  549.  ^  Mackin  v.  The  United  States,  117 
^  Id.  U.  S.  348  ;  United  States  v.  De  Walt,  128 
4  Byers  v.   Commonwealth,  42  Pa.  St.     U.  S.  393. 

89,  94 ;  State  v.  Glenn,  54  Md.  572,  600, 


THE    RIGHTS    OF   PERSONS.  61 

indictment.  The  indictment  is  peculiar  to  criminal  prosecutions. 
If  the  grand  jury  ^  find  the  indictment,"  it  contains  the  cliarge 
which  the  accused  is  required  to  answer  in  accordance  with  legal 
requirements  and  forms.  After  answering  (])leading)  that  he  is 
not  guilty,  he  is  put  upon  his  trial  before  an  ordinary  jury  con- 
sisting of  twelve  men.  This  clause  denies  to  the  court  at  the 
trial  the  power  to  strike  words  out  of  the  indictment  as  super- 
fluous, without  submitting  the  case  anew  to  the  grand  jury.i 

This  system  is  derived  by  inference  from  the  provision  of 
Magna  Charta,  already  cited.  If  the  crime  is  not  "  infamous,"  in 
the  sense  already  explained,  the  prosecuting  officer  may  file  a 
statement  of  the  offence  charged  without  the  aid  of  a  grand  jury, 
in  which  he  lays  before  the  court  the  facts  relevant  to  the  alleged 
offence.  This  statement,  drawn  up  in  legal  form,  is  termed  an 
"  information." 

2.    Proceedings  in  all  criminal  prosecutions. 

a.  The  accused  shall  enjoy  the  right  to  be  "  confronted  "  with 
the  witnesses  against  him. 

The  meaning  of  the  word  "confronted"  is  that  the  witness  is 
to  testify  in  the  presence  of  the  accused.  The  value  of  confront- 
ation is  that  it  not  only  enables  the  honest  witness  to  correct  a 
mistake  as  to  the  identity  of  an  accused,  but  also  tends  to  deter 
a  dishonest  one  from  giving  false  testimony.  Under  the  consti- 
tutional rule,  the  accused  cannot  be  made  subject  to  testimony 
taken  out  of  court,  as,  for  example,  under  a  commission  in  another 
State.  The  same  word,  or  its  equivalents,  is  found  in  the  State 
constitutions  to  regulate  the  action  of  State  courts.^  "  Dying 
declarations,"  where  otherwise  admissible,  are  not  excluded  by 
this  rule.^ 

h.  The  right  to  compulsory  process  for  obtaining  witnesses  in 
his  favor. 

Compulsory  process  for  this  purpose  has  for  a  long  time  existed 
in  the  law.  The  object  of  this  provision  is  but  to  secure  an 
existing  right.  The  regular  course  is  to  summon  the  witness  by  a 
writ,  called  a  "  subprona  "  from  the  fact  that  a  -penalty  is  imposed 
for  non-observance  of  its  requirements.     If  it  be  disobeyed,  the 

1  Ex  parte  Bain,  121  U,  S,  1.  where  on  a  second  trial  the  testimony  of  a^ 

2  Constitutions  :  of  Connecticut,  Art.  I.  witness  taken  on  the  first  trial  but  who 
§  9  ;  Georgia,  Art,  I.  §1,  jiar.  5  ;  Iowa,  Art.  has  since  died  is  sought  to  be  introduced. 
1,  §  10,  etc.  In  some  of  the  constitutions  People  v.  PenhoUow,  42  Hun,  103,  And 
the  expression  "  face  to  face  "  is  substituted,  if  the  witnesses  were  absent  from  the 
as  in  Illinois,  Art.  II.  §  9  ;  Delaware,  Art,  second  trial  by  the  procurement  of  the 
I.  §  7  ;  Indiana,  Art.  I.  §  13  ;  Kansas,  Bill  prisoner,  their  previous  testimony  would  be 
of  Rights,  §  10  ;  Florida,  Declaration  of  admitted,  Re}Tiolds  v.  United  States,  98 
Rights,    §11.      Under    the  word    "con-  U.  S,  145. 

fronted "    might    be    presented   the   case  ^  Green  v.  The  State,  66  Ala.  40. 


52  THE   LAW   OF   PERSONS. 

witness  may  be  brought  before  the  court  by  a  process,  termed  an 
attaclimcnt,  to  show  cause  why  he  shall  not  be  deemed  guilty  of 
a  contempt  of  court,  and  if  the  facts  warrant  it,  he  may  be  fined 
for  contempt  as  well  as  compelled  to  testify. 

c.  He  may  have  the  assistance  of  counsel  for  his  defence. 
This  right  was  now  for  the  first  time  secured  by  any  national 

government,  though  it  appears  at  an  earlier  day  in  some  of  the 
State  constitutions. 1  Counsel  were  not  at  that  time  allowed  in 
criminal  cases  in  England,  except  in  charges  of  high  treason,  and 
in  trials  for  the  inferior  grade  of  crimes,  termed  misdemeanors. 
In  charges  of  felonies,  punishable  with  death,  counsel  were  not 
allowed.  This  was  so  until  Sidney  Smith,  with  his  brilliant  sar- 
casm and  invective  and  telling  argument,  shamed  Parliament  into 
the  enactment  of  a  law  allowing  counsel  in  the  case  of  trials  for 
felony.2  The  statutes  allowing  counsel  are  referred  to  in  the 
note.^  It  is  greatly  to  the  credit  of  the  framers  of  the  New  York 
constitution  of  1777,  that  they  were  the  first  among  English- 
speaking  people  to  make  the  right  of  one  accused  of  a  felonious 
crime  secure  by  constitutional  provision,  in  opposition  to  the  cur- 
rent of  contemporary  professional  opinion  in  England.  The  words 
are  very  sweeping :  "  In  every  indictment  for  crimes  or  misde- 
meanors the  party  indicted  shall  be  allowed  counsel,  as  in  civil 
actions."  ^  A  refusal  by  a  court  to  grant  delay  to  enable  counsel 
to  make  preparation  may  be  equivalent  to  a  denial  of  the  right  to 
have  counsel.^ 

d.  No  person  shall  be  compelled  to  be  a  witness  against  himself. 
This  principle  is  settled  in  the  common  law.     The  sole  object 

of  asserting  it  in  the  Constitution  is  to  make  it  secure  and  free 
from  disturbing  legislation.  It  has  been  held  by  the  Supreme 
Judicial  Court  of  Massachusetts  that  a  prisoner  is  not  compella- 
ble to  disclose  the  circumstances  of  an  alleged  criminal  offence, 
on  an  investigation  by  either  house  of  the  legislature.^ 

3.  No  person  shall  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb.'^ 

Among  the  defences  that  may  be  made  by  the  prisoner  to  the 
charges  made  against  him,  tliis  one  is  singled  out  for  constitu- 
tional protection.     It  is  called  the  defence  of  prior  jeopardy. 

1  In  the  Constitution  of  Massactusetts  «  6  &  7  Wm.  IV.  c.  114,  A.  d.  1836-7, 
of  1780,  Part  I.  Art.  XII.;  and  in  that  of  11  &  12  Vict.  c.  43,  §  12;  15  &  16  Id. 
New  York  of  1777,  Art.  XXXIV.    It  does    c.  54,  §  10. 

not  appear  in  that  of  North  Carolina  of         *  N.  Y.    Constitution    of    1777,    Art. 

1776.  XXXIV. 

2  Edinburgh    Review,     1826  ;    Sidney  °  State  v.  Simpson,  38  La.  Ann.  23. 
Smith's  Works   (4th  ed.,   London)  Vol.  ^  Emery's  Case,  107  Mass.  172. 

iii-  p.  1.  ■'  Art.  V.  of  Amendments. 


THE   RIGHTS   OF   PERSONS.  63 

The  elements  to  be  considered  are  twofold.  One,  that  the 
accused  has  been  already  once  in  "  jeopardy,"  and  the  other,  that 
he  is  now  being  placed  in  jeopardy  for  a  second  time  for  the  same 
offence.  The  word  "  jeopardy,"  in  this  connection,  has  a  legal, 
not  its  popular,  meaning.  Its  signification  is,  danger  to  life  or 
limb  through  the  outcome  of  a  judicial  proceeding  against  him. 
This  danger  can  only  culminate  in  actual  injury  through  a  con- 
viction for  crime  and  a  corresponding  sentence  and  its  execution. 
But  it  may  happen  that  the  proceedings  may  be  stopped  in  their 
initial  stages,  either  by  the  prosecuting  officer  acting  for  the  gov- 
ernment, or  by  the  order  of  the  judge.  It  then  becomes  a  momen- 
tous and  difficult  question,  when  the  jeopardy  referred  to  exists ; 
whether,  for  example,  at  the  beginning  or  at  the  close  of  the  pro- 
ceedings in  court,  or  at  some  intermediate  stage.  As  to  this  there 
is  great  diversity  of  views  among  the  courts.  A  number  of  the 
State  constitutions  have  substantially  the  same  clause,  and  the 
State  courts  have  been  required  to  interpret  it,  as  well  as  those 
of  the  United  States. 

To  gain  a  correct  interpretation,  it  is  necessary  to  note  that 
there  is  a  great  rule  of  the  common  law,  that  if  a  person  has  been 
tried  on  a  criminal  charge  and  either  convicted  or  acquitted,  he 
cannot  be  tried  a  second  time.  The  former  decision  is  declared 
to  be  a  bar  to  any  future  proceeding,  if  the  accused  bring  the 
result  properly  forward  as  a  defence.  The  plea  of  conviction  is 
called  auterfois  convict^  and  that  of  acquittal,  auterfois  acquit. 
This  great  rule  of  justice  is  found  in  the  Roman  law,^  and  per- 
vades all  systems  of  civilized  jurisprudence.  It  only  prevails  in 
the  common  law  in  case  of  a  lawful  conviction  or  acquittal,  so  that 
if  the  first  trial  end  before  either  of  those  stages  is  reached,  the 
proceeding  is  no  bar  to  a  second  trial  and  conviction. 

Suppose  then  that  while  a  trial  is  going  on,  the  judge  for  some 
reason  which  he  deems  sufilicient,  discharge  the  jury,  will  tliere 
be  a  bar  to  a  second  trial  ?  The  correct  answer  is,  that  there 
will  not  be.  There  has  been  neither  acquittal  nor  conviction.  It 
is  a  case  of  an  incomplete  or  abortive  trial,  and  the  prisoner  may 
be  tried  again. 

This  question  underwent  the  most  thorough  examination  in 
England  in  some  recent  cases,  both  as  to  cases  of  misdemeanor 
and  of  felonies,  the  matter  of  misdemeanors  being  first  disposed 
of.2  The  more  difficult  case  was  that  of  a  trial  for  felony ;  in 
fact,  a  capital  case,  the  trial  being  for  murder.  After  the  trial 
was  closed,  the  jury  failed  to  agree,  and  the  judge,  being  notified 

^  The  form  of  the  rule  in  the  Roman  ^  Regina  v.  Charlesworth,   1  B.  &  S. 

law  is,  non  his  in  idem.  460,  s.  c.  9  Cox,  C.  C.  44. 


64  THE   LAW   OF   PERSONS. 

of  their  disagreement,  under  the  special  circumstances  of  the  case 
directed  them  to  be  discharged.  The  accused  being  subjected  to 
a  second  trial,  the  court  decided  that  the  former  proceeding  could 
not  be  urged  as  a  bar  to  the  second,  since  there  had  been  neither 
a  conviction  nor  an  acquittal.  It  was  further  decided  that  the 
judge  had  a  discretion  to  discharge  the  jury  where  the  facts  seemed 
to  him  to  warrant  it,  and  that  the  exercise  of  this  discretion  could 
not  be  reviewed  on  an  appeal  from  his  decision.^  The  court,  after 
an  exhaustive  discussion,  declared  that  there  was  no  decision  in 
modern  times  to  the  contrary,  except  one  in  Ireland,^  by  a  majority 
of  the  court.  The  dissenting  judge,  Crampton,  rendered  an  opin- 
ion "  remarkable  for  sound  reasoning  and  deep  research,"  by 
which  the  court  held  that  the  proposition  at  issue  was  clearly 
established,^  The  case  of  Winsor  v.  The  Queen  dispelled  many 
errors  concerning  the  power  of  courts  over  juries,  among 
others  a  venerable  one,  that  if  the  "jurors  do  not  agree,  the 
judges  may  carry  them  round  the  circuit  from  town  to  town 
in  a  cart."  It  was  declared  that  this  dictum  of  a  number  of 
text-books  rests  on  no  foundation  of  judicial  decision  or  actual 
practice.^ 

Long  before  this  time  the  Supreme  Court  of  the  United  States 
had  reached  a  similar  view  under  the  lead  of  Justice  Story .^  (a) 
It  was  decided  that  the  discharge  of  a  jury  from  giving  a  verdict 
in  a  capital  case  without  the  consent  of  the  prisoner,  the  juri/ 
being  unable  to  agree,  is  not  a  bar  to  a  subsequent  trial  for  the 
same  offence.  In  connection  with  this  ruling,  it  was  held  that 
the  trial  court  is  invested  with  a  discretionary  authority  of  dis- 
charging the  jury  from  giving  any  verdict  in  cases  of  this  nature, 
whenever  in  their  opinion  there  is  a  manifest  necessity  for  such  an 
act,  or  the  ends  of  public  justice  would  otherwise  be  defeated.^ 

The  prevailing  opinion  of  the  State  courts  is  to  the  same  general 
effect.     Reference  may  be  made   to  decisions  in  Massachusetts, 

1  Winsor  v.  The  Queen,  in  error,  L.  R.  1  anrl  instructive,  and  well  worthy  of  the 
Q.  B.  289;  on  appeal,  Id.  390  ;  see  O'Briau     attention  of  the  student. 

V.  Com.,  6  Bush  (Ky.),  563.  *  Winsor  v.  The  Queen,  L.  R.  1  Q.  B. 

2  Conway  v.  Lynch,  7  Ir.  L.  R.  149.         p.  326. 

8  See  Winsor  v.  Tlie  Queen,  L.  R.  1  Q.  5  United  States  v.  Perez,  9  Wheat.  579. 

B.  at  p.  393.     The  dissenting  opinion  of  ^  Similar  results  were   reached  in  the 

Crampton,  J.,  in  the  Irish  Court  which  Circuit  Courts  of  the  United  States.     See 

produced  so  great  an  effect  upon  the  Eng-  United  States  v.  Haskell,  4  Wash.  C.  Ct. 

lish  Bench,  is  printed  in  full   in  a  note  402 ;    United   States    v.    Gibert,    2    Sum. 

to  the  case  of  Queen  v.  Charlesworth,  re-  C.  Ct.  19  ;    United  States  v.  Coolidge,   2 

ported    in    31    L.   J.    Magistrates    Cases,  Gall.  C.  Ct.  364;  United  States  v.  Shoe- 

pp.  25-54.    The  opinion  commences  at  the  maker,  2  McLean,  C.   Ct.  114;  Kelly  r. 

foot  of  page  48.     It  is  uncommonly  lucid  United  States,  27  Fed.  R.  616. 


(a)  See  also  Simmons  v.  United  States,  142  U.  S.  148. 


THE    RIGHTS    OF   PERSONS.  65 

Maryland,  New  York,  Ohio,  and  in  other  States  named  in  the  note.^ 
The  courts  that  take  an  opposing  view  proceed  upon  the  general 
ground  that  when  the  trial  commences  and  the  jury  is  "  charged" 
to  hearken  to  the  evidence  and  to  inquire  whether  the  prisoner  be 
guilty  or  not  guilty,  he  is  put  in  jeopardy.  This  is  an  entirely 
different  principle  from  the  theory  of  the  English  and  our  own 
Federal  courts,  which  makes  the  conviction  or  acquittal  after  the 
trial  is  ended,  the  test  of  jeopardy.  Decisions  proceeding  upon 
this  view  will  be  found  in  the  note.^  But  the  courts  maintaining 
this  doctrine  admit  that  if  the  jury  be  discharged  under  the  pres- 
sure of  absolute  necessity/,  there  is  no  jeopardy.  The  difficulty  in 
this  second  theory  is,  that  the  second  trial  court  really  revieivs 
the  conduct  of  the  judge  on  the  first  trial,  and  inquires  whether 
he  exercised  his  discretion  wisely.  The  discretion,  however,  is  in 
its  nature  not  reviewable  by  another  tribunal.  It  is  not  the  subject 
of  appeal  to  a  higher  court.^  Still  more,  it  cannot  be  reviewed  by 
a  co-ordinate  tribunal,  such  as  a  later  trial  court.  If  it  be  objected 
that  the  discretion  is  on  this  theory  liable  to  abuse,  the  answer  is, 
that  the  security  which  the  public  have  for  the  faithful,  sound,  and 
conscientious  exercise  of  this  discretion,  is  the  responsibility  of  the 
judges  under  their  oaths  of  office.*  This  responsibility,  as  a  rule, 
is  a  sufficient  security. 

Where  the  first  trial  is  ineffective  for  any  substantial  reason, 
of  an  intrinsic  nature,  the  prisoner  has  not  been  in  jeopardy  and 
may  be  tried  again.  This  general  rule  is  sanctioned  by  all  the 
authorities.     The  following  instances  may  be  referred  to :  — 

Cases  where  the  court  has  no  jurisdiction  over  the  subject- 
matter  of  the  trial  ;^  (a)  where  the  law  under  which  the  prisoner 
was  arraigned  and  tried  is  unconstitutional  and  void,  in  which 
case  there  is  no  offence  ;  where  the  judgment  has  been  arrested 
by  the  court  for  inherent  defects  ;  ^  where  there  has  been  a  waiver 
of  the  protection  of  the  rule  by  an  act  of  the  prisoner,  an  in- 

1  Peoples.   Goodwin,   18  Johns.    187;  Clements,  50  Ala.  459  ;  Ah  King  v.  People, 
Com.  V.  Bowden,  9  Mass.  494;  Hoffman  v.  5  Hun,  297;  State  v.  Moon,  41  Wis.  684. 
State,  20  Md.  425  ;  Stone  v.  The  People,  3  Winsor  v.  The  Queen,  L.  R.  1  Q.  B. 
2  Scammon  (111.),  326  ;  Dobbins  v.  State,  390. 

14  Ohio  St.  493;  Potter  v.  State,  42  Ark.  29;  «  United  States  v.  Perez,  9  Wheat.  579, 

State  V.  Pool,  4  Lea  (Tenn.),  363;  State  v.  580. 

Honeycutt,  74  N.  C.  391  ;  Potter  v.  State,  ^  Montross  v.  The  State,  61  Lliss.  429  ; 

42  Ark.  29  ;  State  v.  Copeland,  65  Mo.  497.  Thompson  v.  State,  6  Neb.  102. 

2  Com.  I'.  Cook,  6  Serg.  &  R.  577  ;  ^  The  State  v.  Clark,  69  Iowa,  196  ; 
McFadden  v.  Com.,  11  Harris  (Pa.),  12;  State  v.  Sherburne,  58  N.  H.  535;  The 
Williams  v.  Com.,  2  Grattau  (Va.),  568  ;  People  v.  Casborus,  13  Johns.  351  ;  Phil- 
State  V.  Waterhouse,  M.  &  Y.  (Tenn.)  278  ;  lips  v.  People,  88  111.  160  ;  State  v.  Owen, 
Ned  V.  State,  7  Porter  (Ala.),  188;  ex  parte  78  Mo.  367. 

(«)  Blyew  V.  Commonwealth,  12  Ky.  Law  Eep.  742. 
6 


65  THE   LAW   OF  PERSONS. 

stance  bcinc:  a  motion  for  a  new  trial,  or  an  appeal  accompanied 
by  a  reversal ;  ^  (a)  where  the  indictment  in  the  first  proceeding  is 
so  defective  that  no  valid  judgment  can  be  entered  ;2  acquittal  on 
a  variance  between  the  words  in  the  indictment  descriptive  of 
the  offence,  and  the  evidence  ;  ^  (5)  where  the  first  conviction  or 
acquittal  was  obtained  by  fraud.^(c) 

It  is  conceded  by  all  that  the  constitutional  rule  does  not  apply 
where  the  jury  is  discharged  on  the  following  grounds:  sickness 
of  a  juror,^  or  the  expiration  of  the  term  of  the  court ;  ^  sickness 
of  the  judge,  and  adjournment  of  the  court ;  absconding  of  the 
prisoner  during  the  trial ;  ^  so  where  the  judge  stopped  the  trial 
for  good  cause.^  Also  where  the  trial  was  not  finished  when  the 
term  of  the  court  closed.^ 

A  rule  of  law  gives  the  public  prosecutor  the  power  to  ask  the 
court  to  discontinue  the  proceedings  on  account  of  his  unwilling- 
ness to  continue  the  prosecution.  This  is  technically  called  a 
nolle  prosequi.  A  question  has  been  raised  in  a  number  of  cases 
whether  such  a  proceeding  is  not  a  bar  to  a  future  indictment. 
The  better  opinion  is,  that  it  is  not,  there  being  neither  conviction 
nor  acquittal.     It  is  a  discretionary  order  of  the  court.^*' 

A  criminal  proceeding  against  one  accused  of  crime  may  be  in 
some  instances  discontinued  before  reaching  the  trial  stage ;  as,  for 
example,  on  a  preliminary  inquiry  before  a  magistrate,  or  on  an 
indictment  presented  to  a  grand  jury  to  be  found  by  them.  A 
dismissal  of  the  charges  in  such  cases  is  not  deemed  to  be  a  case 
of  jeopardy. ^^  This  rule  can  be  derived  from  the  general  consent 
of  the  authorities  that  there  can  be  no  "  jeopardy  "  until  the  trial 
jury  is  sworn  and  "  charged  "  by  the  judge  in  the  manner  already 
described.  Still,  if  a  prisoner  be  tried  before  a  magistrate  and 
convicted,  the  conviction  is  a  bar  to  proceedings  in  other  courts.^^ 

1  People   V.   Palmer,  109  N.  Y.  413  ;  ^  Com.  v.  McCormick,  130  Mass.  61. 

State   V.  Hart,  33  Kan.    218  ;  People   v.  9  In  re  Scrafford,  21  Kan.  735. 

Schmidt,  64  Cal.  260.  i^  State  v.  Champeau,  52  Vt.  313  ;  Pat- 

-  Robinson  v.  The  State,  52  Ala.   587  ;  terson  v.  The  State,  70  Ind.  341.     But  see 

People  V.  Clark,  67  Cal.  99.  Jones  v.  State,  55  Ga.  625. 

8  Burress  v.  Commonwealth,  27  Gratt.  ii  Commonwealth     v.    Hamilton,    129 

934.  Mass.  479   (case  of  magistrate)  ;    State  v. 

*  Halloran  v.  The  State,  80  Ind.  586  ;  Jones,    16  Kan.   608  ;    State  v.  Whipple, 

State  V.  Swepson,  79  N.    C.  632  ;  State  v.  57  Vt.  637  (case  of  grand  jury).     Ex  parte 

Simpson,  28  Minn.  66.  Clarke,  54  Cal.  412. 

8  Mixon  u.The  State,  55  Ala.129;  Doles  12  Wemj^ss  v.  Hopkins,  L.  E.  10  Q.  P.. 

V.  The  State,  97  Ind.  555.  378.     The  princijile  is  that  a  man  cannot 

^  State  V.  Jeffors,  64  Mo.  376.  be  tried  or  punished  twice  for  the  same 

7  The  People  v.  Higgins,  59  Cal.  357.  cause,  pp.  381,  382. 

(a)  People  v.  Murray,  89  Mich.  276.        Dec.  305  ;  People  i'.    Meakim,   61   Hun, 
[h)  SeeN.Y.  Co.le  of  Crim.  Pro.  §§  340,     327. 
341;  Canter  v.   People,  1  Abb.  Ct.  App.  (c)  Shideler  v.  State,  129  Ind.  523. 


THE   RIGHTS   OF   PERSONS.  67 

The  second  clement  in  "  jeopard}' "  is  now  reached.  This  is,  that 
the  offence  asserted  by  the  second  action  must  be  identical  with 
that  in  which  the  prisoner  has  been  in  jeopardy  in  the  first.^  If 
the  two  offences  be  distinct  in  their  nature,  there  is  no  bar.  This 
proposition  is  maintained  in  all  the  cases.  Thus  an  acquittal 
upon  an  indictment  for  stealing  goods  is  no  bar  to  another  indict- 
ment for  stealing  goods  of  a  like  description,  unless  the  goods  in 
each  case  be  the  very  same.^  When  there  is  any  doubt  as  to  the 
identity  of  the  offences  the  defendant  is  bound  to  show  that  they 
are  identical.^  If  the  two  indictments  are  so  diverse  as  to  make 
it  impossible  to  use  the  same  evidence  to  sustain  both,  there  is  no 
case  of  second  jeopardy.*  However,  a  trial  for  stealing  goods,  fol- 
lowed by  a  conviction,  is  a  bar  to  another  action  for  receiving  the 
same  goods  after  they  are  stolen,  since  the  two  causes  of  action 
are  in  substance  identical.^ 

The  same  rule  is  established  in  England  as  to  the  plea  of  prior 
conviction  or  acquittal.  If  one  be  indicted  as  a  principal  in  an 
alleged  felony  and  acquitted,  he  may  be  tried  as  an  accessory 
before  the  fact,  the  two  offences  being  distinct.^ 

It  may  be  added  that  if  a  prisoner  be  acquitted,  a  new  trial 
cannot  be  granted  by  the  court  on  appeal,  for  errors  of  the  judge 
or  jury  at  the  trial ;  as,  for  example,  because  evidence  was  improp- 
erly received  or  rejected,  or  because  the  verdict  of  the  jury  was 
against  evidence.^  A  loose  practice  had  sprung  up,  allowing  new 
trials  to  be  granted  in  case  of  acquittal.  A  formal  decision 
had  been  rendered  to  that  effect.^  This  anomalous  decision  was 
overruled  in  the  case  of  Regina  v.  Duncan,  and  also  by  a  de- 
cision in  the  Privy  Council.^  The  old  law  as  it  had  stood  for 
centuries  has,  accordingly,  been  reinstated.  This  rule  thus 
happily  restored  is  recognized  by  decisions  and  uniform  practice 
in  this  country .i*^ 

(6)  General  regulations.  1.  No  person  shall  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law. 

In  quoting  this  expression,  reference  is  now  made  solely  to  the 
words  as  they  appear  in  the  Fifth  Amendment.    These  are  intended 

1  "Wemyss  v.  Hopkins,  T.  E.  10  Q.  B.  trial  for  breaking  in  with  intent  to  steal 
378  ;  State  v.  Wister,  62  Mo.  592.  the  same  goods.     Rex   v.   Vandercom,    2 

2  Com.  V.  Sutherland,  109  Mass.  342.        East,  P.  C.  519. 

8  Jenkins  v.  The  State,  78  hid.  133.  ^  Reg.   v.   Duncan.    L.  R.   7  Q.  B.  D. 

*  Parchman  v.  The  State,  2  Tex.  App.     198  ;  s.  c.  14  Cox  C.  C.  571. 

228.  8  Reg.  V.  Scaife,  17  Q.  B.  D.  238  ;   13 

*  United  States  v.  Harmison,  3  Sawy.     Id.  773. 

C.  Ct.  556.  »  Reg.  v.  Bertrand,  L.  R.  1  P.  C.  520. 

6  Rex  V.  Plant,  7  C.  &  P.  575.     So  an  i"  See  among  other  cases,  State  v.  West, 

acquittal   for    breaking    in   and    stealing  71  N.  C.  263,  and   People  v.  Comstock,  8 

certain  goods  does  not  bar  a  subsequent  Wend.  549. 


68  THE   LAW   OF   PEESONS. 

for  no  other  purpose  but  to  govern  the  action  of  the  Federal 
government,  the  States  being  restrained  in  their  action  by  like 
words  in  the  Fourteenth  Amendment. 

The  phrase  "  due  process  of  law  "  is  borrowed  from  English 
sources.  Lord  Colce  ^  makes  use  of  it  as  a  gloss  or  interpretation 
put  upon  the  famous  words  in  the  Great  Charter  already  referred 
to,  "  the  judgment  of  his  peers  and  the  law  of  the  land."  The 
phrase  is  indefinite,  as  it  is  not  stated  what  "  due  process  of  law  " 
is.  It  is,  however,  elastic,  and  as  questions  from  time  to  time 
arise,  it  is  the  proper  function  of  the  Supreme  Court  of  the 
United  States  to  decide  whether  they  are  included. 

This  Amendment  is  a  restraint  on  the  legislative  as  well  as  on 
the  executive  and  judicial  powers  of  the  government.^  It  cannot 
j)roperly  be  so  construed  as  to  leave  Congress  free  to  make  any 
process  "  due  process  of  law "  by  its  mere  will.  There  are  two 
modes  of  proceeding  in  interpreting  the  clause.  One  is  to  see 
whether  the  "  process  "  before  the  court  is  in  conflict  with  a  con- 
stitutional provision.  If  not  found  to  be  so,  the  court  looks  to 
the  settled  usages  and  modes  of  proceeding  existing  in  England 
before  the  settlement  of  this  country,  found  not  to  be  unsuited  to 
the  civil  and  political  condition  of  our  ancestors  in  this  country. 
This  would  be  made  to  appear  by  their  having  been  acted  upon 
during  the  colonial  period.^ 

In  general,  "  due  process  of  law  "  implies  and  includes  a  plain- 
tiff (actor),  a  defendant  (reus),  a  judge  (judex),  regular  allega- 
tions, opportunity  to  answer,  and  a  trial  according  to  a  settled 
course  of  judicial  proceedings.*  In  special  cases,  by  long  usage 
these  elements  may  not  have  been  present.  The  Constitution  acts 
upon  the  existing  state  of  things,  and  leaves  the  special  remedies 
untouched,  even  though  they  may  be  summary  in  their  nature.^ 

In  such  rulings  as  these,  the  court  does  not  hold  that  there  is 
any  "  common  law  "  extending  over  the  entire  Union.  The  Union 
has  no  common  law.^  Reference,  however,  may  be  made  to  the 
common  law  in  interpreting  words  and  phrases  used  in  the  Con- 
stitution, that  system  of  law  being  familiar  to  the  people  when 

1  2  Inst.  50.  Co.,  supra.    These  principles  were  applied 

2  Murray's  Lessee  v.  Hob.  Land  &  Imp.  in  this  case  to  a  special  method  of  enfor- 
Co.,  18  How.  (U.  S.)  272,  276,  per  Curtis,  cing  the  duty  of  a  collector  of  customs  to 
J.;  Stuart  v.  Palmer,  74  N.  Y.  183.  This  account  to  the  United  States  for  money 
case  construed  a  like  provision  in  the  received,  though  there  was  no  regular 
State  constitution.  method  of  trial  resorted  to.     The   entire 

^  Murray's  Lessee  v.  Hob.  Land  &  Imp.  opinion  is  highly  instructive. 
Co.,  18  How.  (U.  S.)  272.  s  Wheaton  v.  Peters,  8  Pet.  591  ;  Ken- 

*  Murray's  Lessee  V.  Hob.  Land  &  Imp.  dall    v.    United   States,   12    Pet.   524,    at 

Co.,  Id.  280.  p.    621  ;    Lorman   v.  Clark,    2    McLean, 

^  Murray's  Lessee  v.  Hob.  Land  &  Imp.  568. 


THE    EIGHTS    OF    PERSONS.  69 

the  Constitution  was  adopted.  It  is  apparent,  from  these  consid- 
erations, that  it  is  impracticable  to  state  in  a  mere  definition  the 
precise  scope  of  the  expression,  "  due  process  of  law."  It  would 
be  wiser  to  leave  each  case,  as  it  may  arise,  to  be  disposed  of  by  the 
court  upon  the  principles  already  indicated.^  No  exposition  has 
received  more  acceptance  than  that  of  Daniel  Webster  in  his  argu- 
ment in  the  Dartmouth  College  case.  He  said,  by  the  phrase  "  law 
of  the  land  "  (the  equivalent  of  "  due  process  of  law  ")  is  meant  the 
general  law, "  which  hears  before  it  condemns,  which  proceeds  upon 
inquiry  and  renders  judgment  only  after  trial.  The  meaning  is,  that 
every  citizen  shall  hold  his  life,  liberty,  property,  and  immunities 
under  the  protection  of  the  general  rules  which  govern  society."  ^ 

The  phrase  "  due  process  of  law,"  will  be  further  considered 
hereafter  in  discussing  the  Fourteenth  Amendment. 

2.  Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted,  (a) 

This  clause  is  taken  verbatim  from  the  words  of  the  "  Bill  of 
Rights "  passed  by  the  English  Parliament  in  the  reign  of  Wil- 
liam and  Mary.  They  were  inserted  in  that  instrument  to  prevent 
abuses  in  the  administration  of  justice  existing  during  the  reign 
of  the  Stuart  dynasty.  The  judges  were  then  removable  at  the 
king's  pleasure,  and  were  servile  to  him,  and  at  times  cruel  and 
even  merciless  in  the  administration  of  justice.  The  framers  of 
the  Constitution  lived  but  a  few  years  distant  from  these  judicial 
excesses.  Their  enormities  were  fresh  in  memory.  The  clauses 
were  incorporated  into  the  Constitution  as  a  precaution,  and  not 
because  there  was  any  existing  need  of  them.  Few  cases  have 
arisen  calling  for  construction  of  them. 

While  these  words  were  inserted  in  the  English  Bill  of  Rights 
to  prevent  improper  encroachments  by  the  king  or  his  instru- 
ments, the  judges,  they  were  not  placed  in  the  United  States 
Constitution  simply  to  restrain  executive  or  judicial  authority. 
They  were  also  intended  to  operate  upon  Congress,  and  to  prevent 
the  enactment  of  oppressive  laws,  whereby  the  acts  prohibited 
could  be  done.  The  clause  assumes  that  these  acts  could  be  done 
by  force  of  law,  were  it  not  for  the  prohibition.^  It  follows  that  Con- 
gress can  neither  directly  nor  indirectly  sanction  the  imposition  of 
excessive  bail,  excessive  fines,  or  cruel  and  unusual  punishments.* 

1  A  collection   of  various   expositions  ^  By  the  Court  of  Errors,  in  Barker  i\ 

and  definitions  is  to  be  found  in  Stuart  v.  The  People,  3  Cow.  686,  at  p.  701. 
Palmer,  74  N.  Y.  183,  191,  192.  *  It  was  declared  to  be  a  "cruel  and 

'^  Dartmouth  College  v.  Woodward,  4  unusual  "  punishment  to  establish  by  mu- 

"Wheat.  519,  at  p.  581.  nieipal  ordinance  that  the  hair  of  every 


(n)  Art.  YIII.  of  Amendments. 


70  THE   LAW   OF   PEESONS. 

It  is  not  a  case  of  unusual  punishments  and  excessive  fines  to  im- 
pose cumulative  punishments  for  distinct  offences  in  the  same  pros- 
ecution.i  j^or  is  it  so,  to  pass  a  law  inflicting  greater  punishment 
for  an  offence  committed  in  one  part  of  a  State  than  in  another. 
There  may  be  good  reason  in  the  varying  circumstances  for  such  a 
distinction.^  It  was  decided  in  one  case,  that  imprisonment  at 
hard  labor  for  two  years  for  obtaiiiing  three  dollars  by  means 
of  a  fraudulent  device  was  not  a  cruel  or  unusual  punishment.^ 
Congress  has  the  power  to  impose  forfeiture  of  citizenship  as  a 
punishment  for  crime.^  It  has  been  decided  in  Virginia  and 
Maryland  that  a  statute  inflicting  stripes  in  the  discretion  of  the 
court  as  a  punishment  is  not  repugnant  to  the  Constitution.^  It 
would  seem,  however,  that  if  such  a  punishment  had  become 
obsolete,  the  revival  of  it  would  be  an  unusual  punishment  in  the 
sense  of  the  Constitution. 

While  the  Amendment  under  consideration  applies  solely  to 
national  action,^  the  substance  of  it  is  repeated  in  a  number  of  the 
State  constitutions.  It  has  been  held  by  the  highest  court  in  New 
York  that  the  infliction  of  the  punishment  of  death  by  electricity 
is  not  a  cruel  and  unusual  punishment.  It  was  conceded  to  be 
unusual,  but  denied  on  the  evidence  submitted  to  the  court  to 
be  cruel,  as  all  reasonable  doubt  was  removed  that  the  applica- 
tion of  electricity  to  the  vital  parts  of  the  human  body  in  the 
manner  contemplated  by  the  act  must  result  in  instantaneous 
and  painless  deathj  Reference  is  made  in  a  note  to  a  case  in  a 
State  court  in  which  the  subject  of  excessive  fines  is  considered  ^ 

More  specific  reference  should  be  made  to  the  word  "  bail"  as 
used  in  this  Amendment.  The  object  of  it  is  to  secure  the  at- 
tendance of  a  person  under  charges  at  a  trial,  or  obedience  to  a 
mandate  of  the  court.  A  written  instrument  to  that  effect  prom- 
ising to  be  answerable  to  a  specified  amount  is  executed  by  the 
person  of  whom  the  bail  is  required  with  sureties,  into  whose  cus- 
tody he  is  assumed  to  be  delivered.  It  is  a  matter  of  necessity 
that  discretion  should  be  reposed  in  mngistrates  or  judges  as  to 
the  amount  of  bail  to  be  required.  If  it  be  excessive,  an  applica- 
tion may  be  made  to  have  it  reduced.  It  should  not  be  fixed  at 
a  sum  so  large  as  purposely  to  prevent  giving  bail.®     Judges  or 

male    person    under    sentence    for  ci'ime  *  Huber  v.  Reily,  53  Pa.  St.  112. 

should  be  cut  off  to  a  uniform  length  of  ^  Commonwealth   v.   Wyatt,    6    Rand, 

one  inch  from  his  scalp,  the  object  of  the  (Va.)  693  ;  Foote  v.  State,  59  Md.  264. 
law  being  to  degrade  and  annoy  Chinamen.  ^  Pervear  v.  Commonwealth,  5    Wall. 

Ho  Ah  Kow  V.  Nunan,  18  Am.  Law  Reg.  475. 
N.  s.  676,  7  People  v.  Kemmler,  119  N.  Y.  580. 

1  State  V.  O'lSTeil,  58  Vt.  140,  165.  »  Blydenburgh  v.  Miles,  39  Conn.  484. 

^  Matter  of  Bayard,  25  Hun,  546.  9  United  States  v.  Lawrence,  4  Cranch, 

3  State  V.  Williams,  12  Mo.  App.  415.  C.  Ct.  518, 


THE   RIGHTS   OF   PERSONS.  71 

magistrates  who  wilfully  require  excessive  bail  are  liable  to  indict- 
ment or  impeachment.^ 

(7.)  Trials  in  the  Federal  courts  in  civil  actions.  In  suits  at 
common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  the  common  law.  (a) 

This  clause  is  solely  applicable  to  the  Federal  courts.  The 
expression  "  common  law  "  here  means  the  common  law  proper. 
It  does  not  include  cases  in  equity,  in  which  no  jury  has  ever  been 
resorted  to.  Nor  does  it  include  cases  in  admiralty  unless  a  jury 
was  in  use  when  the  Constitution  was  adopted.  This  clause  by 
its  very  terms  is  merely  conservative.  Its  object  was  to  preserve 
trial  by  jury,  and  not  to  make  innovations.^  Although,  as  has 
been  stated,  the  United  States  has  no  common  law,  many  cases 
may  come  before  its  courts,  in  which  common-law  questions  are 
involved.  This  fact  can  readily  be  seen  by  the  suggestion  that 
a  citizen  of  one  State  may  sue  a  citizen  of  another  State  in  a 
Federal  court  on  any  cause  of  action  whatever.  The  jurisdic- 
tion of  the  court  is  absolutely  unlimited  when  such  parties  are 
before  it.  It  must  then  be,  that  if  the  question  between  these 
litigants  be  one  at  common  law,  a  jury  must  be  called ;  if  it  be 
an  equity  case,  there  will  be  no  jury.  It  ought  to  be  added  that 
Congress  has  power  to  adopt  the  common  law  as  a  body  of  laws 
for  the  use  of  a  territory  over  which  it  has  exclusive  legislation, 
as  for  example,  the  District  of  Columbia.  In  that  case  this  clause 
includes  all  the  common-law  litigation  of  the  District.  Federal 
jurisprudence  is  pervaded  by  the  common  law  for  the  purposes  of 
the  construction  and  interpretation  of  the  Constitution  itself,  and 
statutes,  treaties,  etc.,  made  under  it,  as  well  as  the  application 
of  the  authority  entrusted  to  the  general  government  to  cases  as 
they  may  arise.  This  is  shown  by  the  following  recent  expression 
of  the  Supreme  Court :  "  There  is  one  clear  exception  to  the  state- 
ment that  there  is  no  national  common  law.  The  interpretation 
of  the  Constitution  of  the  United  States  is  necessarily  influenced 
by  the  fact  that  its  provisions  are  framed  in  the  language  of  the 
English  common  law,  and  are  to  be  read  in  the  light  of  its  history. 
The  code  of  constitutional  and  statutory  construction  which,  there- 
fore, is  gradually  formed  by  the  judgments  of  this  court  in  the 
application  of  the  Constitution,  and  the  laws  and  treaties  made  in 

Evans  v.  Foster,  1  N.  H.  374.  2  gee  Parsons  v.  Bedford,  3  Pet.  433, 

446,  447. 


{a)  Art.  VII.  of  Amendments. 


72  THE   LAW    OF   PERSONS. 

pursuance  thereof,  has  for  its  basis  so  much  of  the  common  law 
as  may  be  implied  in  the  subject,  and  constitutes  a  common  law- 
resting  on  national  authority,"  ^ 

Restrictions  in  the  United  States  Constitution  upon  the 
action  op  the  states. 

Some  of  these  restrictions  are  repetitions  of  those  laid  upon 
Congress,  such  as  the  prohibition  against  bills  of  attainder  and 
ex  post  facto  laws.^  It  will  not  now  be  necessary  to  consider  these 
further.  Those  to  which  attention  will  now  be  given  are  found 
in  the  Fourteenth  Amendment. 

The  Fourteenth  Amendment  was  adopted  to  dispose  of  questions 
growing  out  of  the  Civil  War,  and  principally  for  the  protection 
of  those  who  had  recently  been  emancipated  from  slavery.  Still 
its  provisions,  so  far  as  they  concern  the  present  inquiry,  are  not 
confined  to  them,  but  applicable  generally  to  persons  within  the 
jurisdiction  of  the  United  States.  Presi^mptively,  all  persons 
inhabiting  a  State  are  subject  to  its  laws,  and  entitled  to  tlieir 
protection.  Whoever  claims  that  an  inhabitant  —  e.  g.^  an  Indian, 
because,  for  example,  he  is  a  member  of  a  tribe  —  is  exempted 
from  the  "  equal  protection  of  the  laws,"  is  bound  to  prove  the 
exception.^ 

Reference  will  only  be  made  to  the  first  and  fifth  sections  of  the 
amendment.  Section  1.  "  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  a7iy  person  of  life,  liberty,  or  property,  without  due 
process  of  law  ;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  Section  5.  "  The  Congress  shall 
have  power  to  enforce,  by  appropriate  legislation,  the  provisions 
of  this  article." 

There  are  in  the  first  section,  several  important  propositions. 
One  broadly  defines  citizenship  of  the  United  States  and  of  a 
State. (a)  Another  declares  that  the  privileges  and  immunities  of 
a  citizen  of  the  United  States  shall  not  be  abridged  by  a  State.  The 
third  is  of  still  wider  scope.     It  is  not  confined  to  citizens.     It  em- 

1  Smith  V.  Alabama,   124   U.  S.   478,  2  Art.  I.  §  10,  cl.  1,  Constitution. 

479  ;  citing  Moore  v.   United   States,  91  »  State    v.   Ta-cha-na-tah,    64    N".    C. 

U.  S.  270.  614. 


(«)  By  U.  S.  Eev.  St.  §  1993  (1878),     are  declared  to  be  citizens  of  the  United 
children  born  abroad  of  American  citizens     States.     See  post,  p.  126. 


THE   EIGHTS   OF   PEKSONS.  73 

braces  all  persons,  whether  citizens  or  aliens,  whether  natural  per- 
sons or  corporations.  The  shield  of  the  Constitution  protects  any- 
one who  is  a  "  person  "  in  the  eye  of  the  law,  so  that  he  shall  not 
be  deprived  by  a  State,  of  life,  liberty,  or  property,  without  due 
process  of  law,  nor  be  denied  the  equal  protection  of  the  laws. 

It  is  proposed  now  to  consider  two  points  :  deprivation  by  a 
State  of  life  or  liberty  without  due  process  of  law  ;  and  denial  of 
the  equal  protection  of  the  laws.  Deprivation  of  i^roi^erty  by  a 
State  will  be  considered  at  a  later  stage. 

The  expression  "  due  process  of  law  "  in  the  Fourteenth  Amend- 
ment would  naturally  bear  substantially  the  same  meaning  as  in 
the  Fifth  Amendment,  though  a  far  larger  number  of  instances 
would  arise  under  the  former,  owing  to  the  great  number  of  States, 
and  the  width  and  scope  of  State,  as  compared  with  Federal  legis- 
lation. A  great  mass  of  decisions  will  accordingly  accumulate 
around  this  restriction  both  in  the  State  and  Federal  courts.  The 
leading  decisions  construing  this  clause  are  subjoined. 

(1)  The  expression  "  due  process  of  law"  does  not  in  criminal 
cases  make  an  indictment  by  a  grand  jury  imperative.  Even 
felonies  may  be  presented,  if  the  State  law  so  provide,  by  infor- 
mation by  the  prosecuting  officer,  without  an  indictment.^ 

(2)  The  expression  does  not  in  any  way  interfere  with  the 
"  police  power  "  reserved  to  the  States.  Whatever  power  of  this 
sort  the  States  had  before  the  adoption  of  the  Fourteenth  Amend- 
ment, they  still  retain.  The  "  police  power  "  includes  a  great 
variety  of  rules  adopted  from  time  to  time  by  the  States,  regulat- 
ing on  public  grounds  trades  and  occupations,  and  the  use  and 
management  of  property.  Regulations  of  this  kind  are  peremp- 
tory, require  no  judicial  proceedings,  and  may  seriously  interfere 
with  liberty  in  the  broadest  sense  and  the  enjoyment  of  property. 
It  is  the  province  of  the  court  to  determine  as  cases  arise  whether 
the  State  action  is  included  in  the  police  power  and  is  accordingly 
lawful,  or  whether  it  is  violative  of  the  requirement  of  "  due 
process  of  law  "  in  the  sense  of  the  Constitution. 

(3)  Unless  the  "  police  power"  in  some  way  permit,  it  is  un- 
constitutional for  a  State  to  prevent  persons  having  the  general 
power  to  contract,  from  entering  into  such  contracts  as  they  may 
see  fit.  Such  a  proceeding  is  an  unwarrantable  interference  with 
the  liberty  to  follow  one's  business.  An  example  is  a  statute  pro- 
hibiting workmen  from  receiving  wages  in  goods  (store  orders) 
instead  of  money ,2  or  a  seller  of  goods  from  giving  a  "  prize  "  to 

1  Hurtado  v.  California,  110  U.  S.  516  ;  2  Godcharles  v.  Wigeman,  113  Pa.  St. 

Rowan  v.  State,   30  Wis.   129  ;  State  v.     431. 
Boswell,  104  Ind.  541. 


74  THE   LAW   OF   PERSONS. 

a  purchaser,^  or  the  occupants  of  tenement  houses  from  making 
cigars  in  their  apartments.^  («) 

(4)  The  phrase  "  due  process  of  law"  looks  more  to  substance 
than  to  form.  The  great  point  secured  is,  that  there  must  be  an 
opportunity  accorded  to  every  person  to  have  a  judicial  hearing 
according  to  the  nature  of  the  case,  before  he  can  be  deprived  of 
his  fundamental  rights  to  life,  liberty,  or  property .^  If  this  oppor- 
tunity be  afforded,  it  will  not  be  unconstitutional  to  provide  that 
a  class  of  cases  shall  be  made  to  precede  all  otlicrs,  and  be  dis- 
posed of  with  the  utmost  dispatch  consistent  with  a  reasonable 
opportunity  to  be  heard.'* 

(5)  Under  this  Amendment,  a  State  'is  not  prohibited  from 
having  one  set  of  rules  in  one  part  of  its  territory  and  another 
system  in  another  part,  provided  that  there  is  no  encroachment  in 
other  respects  upon  constitutional  restrictions.  It  is  not  neces- 
sary that  the  laws  should  be  territorially  uniform.^  Thus  the 
State,  within  the  area  of  large  cities,  may  have  a  larger  number 
of  peremptory  challenges  of  jurymen  in  criminal  cases  than  in  the 
rest  of  its  territory.^ 

(6)  There  may  be  special  reasons  of  a  public  nature  justifying 
special  rules.  Examples  are  methods  of  confining  the  insane,^  and 
summary  proceedings  to  punish  taxpayers  who  wilfully  refuse  to 
pay  taxes  upon  personal  property.^  (6). 

(7)  The  constitutional  rule  that  there  must  be  "  equal  protec- 
tion of  the  laws  "  extends  to  domestic  private  corporations  as  well 
as  to  private  individuals.  Such  a  corporation  is  a  "  person  "  within 
the  Amendment.^  (c)  This  principle  cannot  be  applied  to  a  for- 
eign corporation,  including  one  established  in  another  State,  since 
it  is  lawful  in  general  to  impose  conditions  on  the  right  of  such  a 

1  People  V.  Gillson,  109  N.  Y.  389.  6  Hayes  v.  Missouri,  120  U.  S.  68. 

2  Matter  of  Jacobs,  98  N.  Y,  98.  '  Matter  of  Ross,  38  La.  An.  523, 

3  This  is  discussed  in  Clark  v.  Mitchell,  «  McMahon  v.  Palmer,  102  N.  Y,  176. 

64  Mo.  564.    See  also  Portland  v.  BangoT-,  9  Santa  Clara  County  v.  So.  Pac.  R.  R. 

65  Me.  120.  Co.,  118  U.  S.  394  ;  Pembina  Co.  v.  Penn- 
*  Kennard  v.  Louisiana,  92  U.  S.  480.     sylvania,  125  U.  S.  181. 

5  Missouri  v.  Lewis,  101  U.  S.  22. 


(a)  An  act  of  the  legislature  prohibiting  u.  Perry,  155  Mass.  117.     Cf.  Hancock  r. 

persons  engaged  in  mining  from  issuing  Yaden,  121  lud.  366. 

for  the  payment  of  labor  any  order  or  paper  (b)  Summary   abatement   of    nuisances 

except  such  as  is  specified  in  the  act  is  un-  according  to  a  prescribed  statutory  method 

constitutional.     State  v.  Goodwill,  33  W.  likewise  falls  within  the  exception.  Lawton 

Va.  179  ;  see  also  State  v.  F.  C.  Coal  &  Coke  v.  Steele,  119  N.  Y,  226.     See  also  Village 

Co.,  Id.  188.    The  following  cases,  though  of    Carthage    v.  Frederick,    122    N.    Y. 

not  decided  under  the  Fourteenth  Amend-  268. 

nient,  but  under  a  like  provision  in  State  (c)    Charlotte,  etc.  R.  R.  Co.  v.  Gibbes, 

constitutions,  may  also  be  cited.     Millett  142  U.  S.  386. 

V.  People,  117  111.  294  ;   Commonwealth  ' 


THE   RIGHTS   OF   PEKSONS.  75 

corporation  to  engage  in  business  elsewhere,^  except  in  cases  where 
Congress  has  control,  as,  for  example,  in  matters  of  foreign  or  of 
interstate  commerce.  It  would  not  be  legal  to  make  it  one  of  the 
conditions  that  the  corporation,  being  sued  in  the  State  court, 
should  not  remove  the  cause,  in  the  manner  provided  by  law,  into 
the  United  States  court.^ 

The  construction  of  the  words  "  equal  protection  of  the  laws  " 
has  been  considered  in  their  application  to  colored  persons.  The 
whole  Amendment  was  principally  designed  to  protect  this  class 
of  persons  from  unfriendly  legislation,  tending  to  cripple  their 
rights  and  render  them  unavailing.^  Congress  has  power  to  pass 
laws  corrective  of  constitutional  wrongs  committed  by  States,  but 
not  to  declare  that  certain  acts  committed  by  individuals  shall  be 
offences.^  Still,  if  individuals  should  transgress  a  right  secured 
to  one  or  more  of  the  colored  race  by  the  Constitution  and  the 
laws  made  under  it,  for  example,  if  they  should  intimidate  a  negro 
in  the  exercise  of  his  right  to  vote  for  member  of  Congress,  there 
might  be  valid  congressional  legislation  on  the  subject.^  It  has, 
however,  been  adjudged  in  the  State  courts  that  a  State  may  by 
its  legislation  separate  colored  from  white  children  in  its  public 
schools  so  long  as  schools  are  provided  for  both.  It  is  argued 
that  the  Constitution  only  guarantees  an  equality,  not  an  identity, 
of  privileges.^  If  this  be  the  correct  interpretation  of  the  Con- 
stitution, it  is  unfortunate  ;  for  such  discriminating  legislation 
creates  a  badge  of  inferiority,  and  fails  to  supply  the  colored  chil- 
dren with  the  stimulus  for  improvement  that  they  would  be  likely 
to  experience  in  the  presence  of  white  children.  It  would  seem 
that  not  only  the  rights,  but  public  privileges,  of  both  classes  of  chil- 
dren should  be  the  same  in  institutions  supported  by  State  funds 
supplied  by  indiscriminate  taxation,  and  conducted  by  State  officials. 

The  law  should  operate  alike  on  all  persons  and  property 
similarly  situated.^  A  State  law,  confining  the  selection  of  jurors 
to  white  persons,  is  in  contravention  of  the  Constitution.^''  Special 
legislation  in  respect  to  private  corporations  must  be  within  the 
general  rules  provided  by  this  Amendment,  such  a  corporation 
ijeing   a  "  person."     A  State  may  classify  its  railroads  by  the 

1  Philadelphia  Fire  Association  v.  New  '^  "Wurts  v.  Hoagland,  114  U.  S.  606  ; 
York,  119  U.  S.  119  ;  Pembina  Co.  v.  Walston  v.  Nevin,  128  U.  S.  578.  There 
Pennsylvania,  125  U.  S.  181.  are  some  valuable  suggestions  as  to  the 

2  Barron  v.  Burnside,  121  IT.  S.  186.  duty  of  the   United   States   towards  the 

3  United  States  v.  Cruikshauk,  92  U.  S.  colored  race,  in  People  v.  King,  110  N.  Y. 
542.  426,  427,  per  Andrews,  J. 

*  Civil  Rights  Cases,  109  U.  S.  3.  «  Strauder  v.  West  Virginia,  100  U.  S. 

6  Ex  parte  Yarbrough,  110  U.  S.  651.      303  ;  Ex  parte  Virginia,  Id.  339. 
6  People  V.  Gallagher,   93  N.  Y.  438. 
See  also  Cory  v.  Cnrter,  48  Ind.  32". 


76  THE    LAW    OF    PERSONS. 

length  of  their  lines,  fixing  a  different  limit  of  rates  of  pas- 
senger fares  in  each  class.i  it  has  also  been  held  that  a  State 
may  make  its  railroad  companies  liable  for  all  damages  done  to 
an  employ^  in  consequence  of  the  neglect  of  agents  and  other 
employ{JS.2  Similar  questions  have  been  presented  on  allegations 
of  unjust  discriminations  as  to  national  banks.^ 

Criminal  trials  by  an  impartial  jury  of  twelve  men  have  been 
made  in  their  substance  perpetually  inviolable  by  State  action,  (a) 
A  State  may  lawfully  permit  one  to  become  a  juryman  who  may 
have  formed  an  opinion  or  impression  unfavorable  to  the  prisoner, 
based  upon  rumor  or  newspaper  statements,  as  to  the  truth  of 
which  he  has  expressed  no  opinion,  if  he  asserts  that  his  verdict 
will  be  based  only  upon  the  account  of  the  case  which  may  be  given 
by  the  witnesses  under  oath.* 

When  one  is  deprived  of  his  liberty  in  violation  of  the  Constitu- 
tion or  laws  of  the  United  States,  he  may  be  discharged  by  the 
Circuit  Court  of  the  United  States  on  a  writ  of  habeas  corjms.^ 
One  case  of  wrong  as  between  States  is  not  reached  by  this 
Amendment.  This  is  an  instance  too  common  in  practice,  where 
a  person  is  unlawfully  abducted  by  force  or  fraud  from  one  State 
into  another,  and  held  in  the  latter  for  trial  upon  a  criminal 
charge.  No  mode  exists  in  the  law  whereby  he  can  be  restored 
to  the  State  from  which  he  was  abducted,  not  even  on  the  applica- 
tion of  the  State  whose  laws  have  been  invaded.  The  most  that 
the  invaded  State  can  do  is  to  charge  the  abductors  with  crime, 
and  demand  their  extradition.^ 

It  has  only  been  the  aim,  in  referring  to  these  recent  decisions, 
to  give  illustrative  examples.  The  general  construction  in  the 
United  States  courts  of  the  expression  "  due  process  of  law  "  is 
the  same  as  has  been  made  in  the  State  courts  in  reference  to 
the  like  clause  in  the  State  constitutions.'^ 

A  more  detailed  view  of  "  the  police  power  "  and  of  its  relation 
to  "  due  process  of  law  "  will  be  given  in  a  later  discussion  of  the 
subject  of  Property,  since  most  of  the  questions  that  have  been  dis- 
posed of  by  the  courts  concern  property  rather  than  personal  rights.^ 

1  Dow  V.  Beidelman,  125  U.  S.  680.  *  Spies  v.  Illinois,  123  U.  S.  131. 

2  Missouri  Pacific  R.  K.  v.  Mackey,  127  ^  Ex  parte  Royall,  112  U.  S.  181  ;  Ex 
U.  R.  205.  parte  Royall,  117  U.  S.  241.     The  circum- 

3  See,  as  to  the  legislation  of  Massachu-  stances  under  which  the  discharge  should 
setts.  Bank  of  Redemption  v.  Boston,  125  be  made  are  stated  in  these  cases. 

U.  S.  60.     An  illustrative  case  in  taxation  ^  Mahon  v.  Justice,  127  U.  S.  700. 

is  found  in  County  of  San  Mateo  v.  So.  "^  Munn  v.  Illinois,  94  U.  S.  113. 

Pacific  R.  R.  Co.  (The  R.  R.  Tax  Case),  8  ^  It  has  not  been  thought  necessary  to 

Sawy.  C.  Ct.  238.  state  the  various  decisions  of  the  State 

{a)  Cf.  Hallinger  v.  Davis,  146  U.  S.  314. 


THE    EIGHTS    OF   PERSONS.  77 

The  Rights  of  Persons  are  Absohite  and  Relative.  Absolute 
rights  resolve  themselves,  according  to  distinctions  long  since 
recognized  in  law,  into  the  right  of  Personal  Securit}',  Personal 
Liberty,  and  Private  Property.  It  is  intended  to  treat  in  this  con- 
nection only  of  Personal  Security  and  Personal  Liberty. 

The  more  numerous  class  of  Relative  Rights  will  be  treated  in 
subsequent  chapters  under  the  titles  of  Husband  and  Wife,  Parent 
and  Child,  Guardian  and  Ward,  and  Master  and  Servant. 

Personal  Security. 

The  right  to  Personal  Security  may  be  regarded  as  comprehend- 
ing the  right  to  life,  limb,  body,  health,  and  reputation.  When 
these  rights  are  violated,  the  law  in  general  provides  a  remedy  for 
the  injury  done,  or  threatened  to  be  done,  both  in  behalf  of  the  in- 
dividual and  of  the  State.  Such  injuries  fall  under  the  domain  of 
public,  as  well  as  |)rivate  law.  Remedies  are  thus  compensatory, 
preventive,  or  punitive. 

When  an  injury  to  the  person  is  threatened,  self-defence  is 
allowed.  In  some  cases  the  wrong-doer  may  be  summoned  before 
a  magistrate,  and  caused  to  enter  into  bonds  with  sureties  to  keep 
the  peace,  in  default  of  which  he  may  be  committed  to  prison  to 
abide  the  action  of  a  criminal  court.  When  an  injury  has  been 
actually  committed,  compensation  in  damages  is  the  usual  remedy, 
though  special  methods  may  be  resorted  to  in  case  of  an  injury  to 
the  health.  Vindictive  damages  may  be  obtained  in  aggravated 
cases.  Such  damages  go  beyond  actual  compensation,  and  are 
allowed  by  way  of  example  to  wrong-doers. 

It  is  the  better  opinion  that  by  the  common  law  there  is  no 
remedy  in  damages  when  life  is  wrongly  taken,  unless  for  the 
interval  between  the  injury  and  the  death.  For  causing  the  death 
itself  no  action  will  lie.  This  is  now  deemed  to  be  a  defect  in  the 
law.  It  was  remedied  in  England  by  a  statute  known  as  Lord 
Campbell's  Act,^  which  has  been  extensively  copied  with  some 
modifications  in  the  United  States.  That  statute  in  substance 
provides  for  an  action  by  the  executor  or  administrator  of  the 
person  killed,  for  the  benefit  of  the  latter's  wife,  husband,  parent, 
or  child,  in  that  class  of  cases  where  the  deceased  would  have  had 
a  cause  of  action  himself  had  he  not  been  killed.  The  damages 
are  left  to  the  jury,  and  are  to  be  proportioned  to  the  injury  sus- 

courts  on  this  subject,  since  in  the  end  the     tion  of  them  is  not  within  the  plan  and 
construction  given  by  the  United  States    purpose  of  this  work. 
court  must  prevail,  and  besides,  a  coUec-  i  9  &  10  Vict.  c.  93,  modified  by  27  & 

28  Vict.  c.  95. 


78  THE   LAW   OF   PERSONS. 

tained  by  the  relatives  above  named,  and  are  to  be  divided  among 
them  as  the  jury  shall  direct.  The  action  must  be  brought  within 
twelve  calendar  months  after  the  death. 

The  principal  modification  of  this  statute  found  in  some  of  the 
States  is  a  clause  limiting  the  amount  of  the  recovery  of  damages 
so  as  not  to  exceed  a  fixed  sum,  such  as  $5,000  or  other  specified 
amount.  Any  negligence  on  the  part  of  the  person  killed,  which 
would  have  prevented  a  recovery  of  damages  by  him  if  he  had 
lived,  will  be  equally  fatal  to  any  recovery  by  his  executor,  etc.^ 

The  subject  of  civil  death  should  be  referred  to  in  this  connec- 
tion. At  common  law  this  was  of  two  kinds  :  one  where  a  person 
became  a  monk  "  professed,"  or  "  abjured  the  realm."  Such  a 
person,  though  civilly  dead,  did  not  lose  his  personal  rights,  but 
became  incapable  both  of  taking  and  holding  property.  His 
estate  passed  to  his  heirs  as  though  he  were  dead.  He  might 
make  his  will  and  appoint  executors.  This  form  of  civil  death  is 
practically  obsolete  in  modern  times. 

The  other  form  was  a  consequence  of  conviction  of  a  crime  of 
the  grade  of  felony.  In  that  case  his  land  did  not  pass  to  his 
heirs,  as  in  the  case  of  "  profession,"  or  abjuration,  but  was  for- 
feited to  the  superior  lord.  He  could  still  take  land  by  purchase 
(that  is,  by  deed  or  will),  but  could  not  liold  it  as  against  the  lord, 
who  might  institute  legal  proceedings  to  take  it  from  him.  If  no 
proceedings  were  instituted,  he  still  remained  owner. 

This  form  of  civil  death  is  still  found  in  some  of  the  States  of 
this  country,  notably  in  New  York  ^  and  California,  as  applied  to 
a  conviction  for  felony,  and  a  sentence  to  imprisonment  for  life. 
Accordingly,  as  forfeiture  to  the  State  in  such  a  case  no  longer 
prevails,^  the  title  to  the  land  remains  in  the  convict  as  before 
conviction.*  He  is,  however,  divorced  by  means  of  the  sentence, 
and  loses  the  custody  of  his  children.  A  pardon  does  not  restore 
him  to  the  rights  of  which  he  was  deprived  by  the  sentence.^ 

Asi<ault  arid  Battery.  —  This  is  a  comprehensive  term  for  an 

^  The  statutes  of  each  State  must  be  ^  A  proceeding  in  outlawry  had  a  some- 
consulted  for  more  precise  information.  As  what  similar  effect.  The  object  of  cut- 
to  local  law  in  New  York,  see  Code  of  Civil  lawry  in  criminal  cases  was  to  compel  a 
Procedure,  §  1904.  person  to  come  into  court  and  plead.     If 

2  Penal  Code,  §  708.  he  did  not  do  so,  under  certain  legal  pro- 

'  Penal  Code,  §  710.  ceedings  he  was  treated  as  civilly   dead. 

*  Avery  v.   Everett,   110  N.    Y.    317.  This  rule  still  exists  in  New  York  in  cases 

This  result  was  reached  on  a  comparison  of  of  treason.     Code  of  Criminal  Procedure, 

chap.  57,  Laws  of  1799,  with  2  Piev.  St.  §§  814-826.      A    judgment    of    outlawry 

701,  §  20,  and  in  approval  of  the  views  of  was  reversed  in  England  not  long  since 

Chancellor  Kent  in  the  case  of  Platner  v.  (1845),  after  the  lapse  of  one  hundred  and 

Sherwood,   6  Johns.   Ch.  118.     See  also  sixteen  years.    Tynte  v.  The  Queen,  7  Ad. 

Penal  Code  of  New  York,  §§  708,  709.  &  El.  n.  s.  216. 


THE   EIGHTS   OF   PERSONS.  79 

injury  to  the  person,  not  amounting  to  the  taking  of  life.  An 
assault  is  a  threat  to  do  bodily  harm ;  a  battery  is  the  actual 
carrying  of  the  threat  into  effect.  The  distinctions  upon  this  sub- 
ject are  highly  technical,  and  must  be  sought  in  the  works  upon 
torts  and  the  decided  cases.^ 

The  definition  of  an  assault  and  battery  in  a  civil  sense  is  not 
identical  with  that  which  prevails  in  criminal  law.  The  essence 
of  a  crime  being  intention,  where  the  intent  is  wanting  no  crime 
exists.  But  the  object  of  the  civil  action  is  to  afford  compensa- 
tion in  damages  to  an  injured  party.  It  would  embrace  the  case, 
for  example,  of  an  injury  committed  by  a  lunatic.  In  such  a 
case,  however,  only  actual  damages  could  be  recovered. 

A  highly  aggravated  case  of  battery  may  constitute  the  offence 
called  •■'  mayhem."  This  at  common  law  consisted  in  unlawfully 
and  maliciously  depriving  a  person  of  some  limb  or  member  use- 
ful in  fighting.  It  would  include  the  cutting  off  or  disabling  a 
hand  or  a  leg,  or  destroying  an  eye  or  a  fore  tooth.  It  did  not 
embrace  the  destruction  of  a  molar  tooth,  or  the  cutting  off  of  an 
ear  or  nose.  These  distinctions  have  ceased  to  exist  in  modern 
law.  Statutes  have  much  enlarged  the  definition  of  maiming, 
which  now  generally  includes  the  destruction  or  disfigurement  of 
any  limb  or  member.^ 

Duress.  —  This  subject  here  presents  itself  as  related  to  the  law 
of  contracts.  There  may  be  duress  both  by  an  attack  upon  per- 
sonal security  and  personal  liberty,  and,  in  a  modified  sense,  upon 
private  property.  The  great  feature  of  duress  is  that  it  takes  away 
or  impairs  one  of  the  essential  ingredients  of  a  contract,  viz., 
assent.  The  discussion  of  this  topic  more  appropriately  belongs 
to  treatises  on  the  law  of  contracts. 

Injuries  to  the  Health  or  Personal  Comfort.  —  These  are  termed 
"nuisances."  The  word  cannot  be  more  precisely  defined.  It  is  a 
generally  accepted  principle  that  an  alleged  nuisance  must  mate- 
rially interfere  with  the  ordinary  physical  comfort  of  human  exist- 
ence, not  merely  according  to  elegant  or  dainty  modes  of  living,  but 
according  to  plain,  sober,  and  simple  notions  among  the  people.^  A 
nuisance  may  be  either  public  or  private.  A  public  nuisance  affects 
the  community  at  large ;  a  private  nuisance  affects  an  individual. 
A  public  nuisance  may  affect  a  single  person  or  group  of  persons, 
and  so  become  private  as  to  them.     An  action  for  damages,  or 

^  See  Addison  on  Torts ;  Cooley  on  ^  Jn  New  York,  see  Penal  Code, 
Torts  ;  Paterson  on  the  Liberty  of  the  Sub-     §§  206-210. 

ject  (2  Vols.  London  :  Macmillan  &  Co.  8  Walter  r.  Selfe,  4  De  G.  &  Sm.  315, 

1877).  322 ;  Soltau  v.  De  H^ld,  2  Sim.  N.  s.  133, 

159. 


30  THE   LAW  OF   PEllSONS. 

other  private  remedy,  does  not  lie  for  a  public  nuisance ;  while 
these  i-cmedies  may  be  resorted  to  in  case  of  a  private  nuisance. 
An  injunction  is  also  a  suitable  remedy ;  and  there  may  be  a  pro- 
ceedin.o;  to  have  the  nuisance  removed,  or,  in  technical  language, 
^'  abated."  The  remedy  for  a  public  nuisance  is  a  criminal  pro- 
ceeding, by  indictment  or  information,  and  in  a  proper  case,  a 
proceeding  in  a  court  of  equity  by  the  attorney-general. 

The  subject  of  nuisances  is  in  modern  times  brought  under 
special  control  by  the  establishment  of  boards  of  health  in  cities 
and  villages,  and  even  of  State  boards  of  health  created  by  statute. 
The  powers  given  to  these  boards  are  to  some  extent  arbitrary,  and 
interfere  with  personal  rights,  but  they  appear  for  the  most  part  to 
be  justified  by  the  exigencies  of  the  case.  There  are  other  injuries 
to  the  health  which  may  be  the  subject  of  legal  proceedings,  such 
as  the  sale  of  poisons  without  compliance  with  statutory  rules,  or 
of  deleterious  articles  of  food  with  knowledge  of  their  character. 
A  physician  or  surgeon  may  be  held  liable  for  the  neglectful  treat- 
ment of  a  patient,  whereby  his  health  is  injured,  and  in  aggravated 
cases  be  subjected  to  criminal  prosecution.^ 

Injuries  to  the  Meputation.  —  These  are  of  two  general  classes : 
libel,  and  slander.  Libel  is  defamatory  matter  addressed  to  the 
eye ;  slander,  to  the  ear.  Of  the  two,  libel  is  deemed  to  be  the 
more  aggravated.  It  is  both  a  civil  wrong  and  a  criminal  offence. 
It  is  classed  among  crimes  on  account  of  its  supposed  tendency  to 
cause  a  breach  of  the  peace.  The  only  proceeding  in  the  case  of 
slander  is  an  action  for  damages.  Defamation,  whether  libellous 
or  slanderous,  is  actionable  on  the  ground  that  the  party  whose 
character  is  assailed  has  sustained  an  injury  to  his  reputation,  for 
which  he  should  receive  reparation,  and  the  only  available  way  of 
compensating  him  is  for  the  court  to  award  him  a  sum  of  money 
as  damages, 

A  libel,  considered  criminally,  may  properly  be  defined  to  be  ma- 
licious defamation  by  writing,  printing,  pictures,  or  signs,  which 
is  calculated  to  injure  the  living,  or  to  blacken  the  memory  of  the 
dead,  or  to  hold  one  up  to  hatred,  contempt,  or  ridicule.  This 
definition  is  too  broad  for  a  civil  action,  since  no  action  for  dam- 
ages could  be  brought  for  "  blackening  the  memory  of  the  dead." 

It  is  necessary  before  any  legal  proceeding  can  be  had  that  a 
libel  should  be  "  published,"  —  a  technical  word,  meaning  made 
known.  Publication  has  a  more  extended  meaning  in  the  crim- 
inal law  than  in  the  civil.     Thus,  a  sealed  letter,  addressed  by 

1  Reference  for  more  detailed  inforraa-  surgeons  for  malpractice  are  collected  in 
tion  may  he  made  to  works  upon  torts  and  McClelland's  Civil  JIalpractice,  &c.  (Hurd 
nuisances.     Many  cases  of  actions  against     &  Houghton,  1877). 


THE    RIGHTS   OF   PERSONS.  81 

the  libeller  to  the  party  libelled,  would  not  be  actionable,  as 
there  would  be  no  injury  to  the  reputation  in  the  minds  of 
others ;  ^  still  the  defamation  would  be  sufficiently  published  to 
be  criminal,  on  account  of  its  tendency  to  cause  a  breach  of  the 
peace.  If,  however,  a  letter  libellous  in  its  character  is  addressed 
by  the  defendant  to  the  wife  of  the  party  libelled,  the  publication 
is  sufficient  as  a  basis  for  a  civil  action,  since  for  this  purpose  the 
law  does  not  regard  tlie  husband  and  wife  as  one.^  Publication 
may  be  made  indirectly  as  well  as  directly,  as  where  one  sends 
a  libellous  manuscript  to  the  printer  of  a  periodical,  and  does 
not  restrain  the  publication  of  it;^  or  gives  a  newspaper  man  an 
outline  with  a  request  to  publish  it,  and  it  is  published  accord- 
ingly, even  though  with  some  variations  of  language.^ 

On  the  subject  of  publication,  a  special  view  has  recently  been 
taken  by  the  English  appellate  court  as  to  venders  of  news- 
papers. It  has  been  determined  that  if  one  sells  a  copy  of  a 
newspaper  in  the  ordinary  course  of  his  business,  though  he  is 
presumptively  liable  for  a  libel  contained  in  it,  he  will  be  relieved 
from  liability  if  he  show  that  he  did  not  know  that  it  contained  a 
libel,  and  that  his  ignorance  was  not  due  to  his  negligence,  and 
further  that  he  had  no  reason  for  supposing  that  it  was  likely  to 
contain  a  libel.^  Every  new  publication  of  the  same  libel  is  a  new 
and  distinct  injury,  and  supplies  a  ground  for  a  new  recovery  of 
damages.^ 

There  is  an  important  difference  in  American  law  between  the 
mode  of  construing  an  alleged  libel  in  a  civil,  as  contrasted  with 
a  criminal  case.  In  a  civil  case,  if  the  words  be  unambiguous, 
the  question  whether  the  writing  be  actually  a  libel,  is  a  question 
of  law  for  the  court,  to  be  decided  by  the  judge,  and  his  decision 
may  be  reviewed  by  an  appellate  court.'  On  the  other  hand,  if 
the  words  be  ambiguous  or  of  doubtful  character,  as  for  example, 
if  there  be  a  doubt  whether  they  are  words  of  caution  rather  than 
of  express  charge,  their  meaning  should  be  left  to  the  jury.^ 
The  understanding  of  parties  who  were  made  aware  of  the  hbel 
may  become  important.^     Whether  the  charge  is  applicable  to  the 

1  Lylew.  Clason,  1  Caines,  581;  Waistcl  ^  Hunt  •?;.  Bennett,  19  N.  Y.  173; 
V.  Holman,  2  Hall  (X.  Y.  Super.  Ct.),  172.  Tuson  v.  Evans,  12  Ad.  &  El.  733  ;  Hunt 

2  Wenman  v.  Ash,  13  C.  B.  836.  v.  Goodlake,  43  L.  J.  (C.  P.)  54  ;  Haire  v. 
Contra,  Wennhak  v.  Morgan,  L.  R.  20  Q.  Wilson,  9  B.  &  C.  643 ;  Darby  v.  Ousely, 
B.  D.  635,  as  to  the  wife  of  the  defendant.  1  H.  &  N.  1. 

3  Burdett  v.  Abbot,  5  Dow,  201.  8  street  v.  Licensed  Victuallers'  Society, 
*  Parkes    v.  Prescott,    L.  Pt.   4  Exch.     22  W.  R.  553;  Hart  tJ.  Wall,  25  W.  R.  373; 

169.  Fisher  v.  Clement,  10  B.  &  C.  472 ;  Lewis  v. 

5  Emmens  v.  Pottle,  L.  R.  16  Q.  B.  D.     Chapman,  16  N.  Y.  369. 

354.  9  Dorland  v.  Patterson,  23  Wend.  422. 

6  Woods  V.  Pangburn,  75  N.  Y.  495. 


32  THE   LAW   OF   PERSONS. 

plaintiff,  is  also  a  question  of  fact,  and  witnesses  may  be  examined 
to  show  who  was  intended.^ 

Defamation  may  thus  be  so  distinct  and  plain  as  to  be  libellous 
on  its  face  without  any  proof  beyond  the  libel  itself, —  as,  to 
charo-e  one  with  "  blackmailing,"  ^  or  with  conduct  tending  to 
brinf  one  into  disgrace  or  ridicule.^  But  a  notice  in  a  newspaper 
advising  applicants  for  board  at  a  certain  place  to  inform  them- 
selves before  locating  there,  of  the  table  and  characteristics  of  the 
proprietor,  is  not  libellous  on  its  face}  In  a  criminal  prosecution, 
on  the  other  hand,  the  general  rule  in  this  country  is  that  the 
jury  are  the  judges  of  the  construction  of  the  words  used,  as  well 
as  of  other  matters.  They  are  declared  to  be  judges  both  of  the 
law  and  of  the  fact.  This  point  is  quite  uncertain  in  the  common 
law.  In  some  of  the  American  States  the  question  is  settled  by 
statute  ;  in  others,  by  a  provision  in  the  State  constitution.^ 

Libels  on  the  administration  of  justice  constitute  a  distinct 
division  of  this  subject.  Such  a  libel  may  be  punished  by  a  pro- 
ceeding as  for  a  contempt  of  court.  In  England  a  criminal  infor- 
mation is  resorted  to.^  The  mode  of  proceeding  in  the  United 
States  is  detailed  in  the  cases  in  the  note.^  The  peculiarity  of 
this  case  is,  that  there  is  no  right  of  an  individual  involved,  but 
rather  the  interest  of  the  whole  community,  in  a  reflection  pub- 
licly made  upon  the  general  administration  of  justice. 

There  is  no  preventive  remedy  in  case  of  a  threatened  publica- 
tion of  a  libel.  An  injunction  will  not  be  granted.^  The  court 
will  not  interfere  though  the  publication  of  the  libel -would  be 
injurious  to  property,^  {a)  nor  will  it  restrain  the  publication  of 
a  false  imputation  against  a  trader's  solvency,^*'  nor  the  publica- 
tion of  false  statements  that  the  plaintiff  is  an  infringer  of  a 
patent."  (b) 

1  Green  v.  Telfair,  20  Barb.  11  ;  Mc-  ^  Respublica  v.  Oswald,  1  Dallas,  319  ; 
Laughlin  v.  Russell,  17  Ohio,  475.                  HoUingsworth  v.  Duane,  Wall.  C.  Ct.  77. 

2  Robertson  ;•.  Bennett,  44   Super.  Ct.  ^  Clark  v.  Freeman,  11  Beav.  112. 

(N.  Y. )  66.  9  Prudential  Company  v.  Knott,  L.  R. 

3  Purdy  V.   Rochester  Printing  Co.  26     10  Ch.  App.  Cas.  142. 

Hun,  206.  w  Mulkern  v.  Ward,  L.  R.  13  Eq.  619. 

*  Wallace  v.   Bennett,   1    Abb.    N.   C.  n  Hammersmith  Skating  Co.  v.  Dublin 

478.  Co.,  Irish  R.  10  Eq.  235. 

6  See  N.  Y.  Constitution,  Art.  I.  §  8.  By  the  Judicature  Acts  in  England,  a 
6  Rex  V.  Fleet,  1   B.  &  Aid.  379  ;  The  provisional    injunction  may  now   be   ob- 
Kiug  V.  Watson,  2  Term  R.   199  ;  Rex  v.  tained  in  proper  cases  to  prevent  the  pub- 
White,  1  Camp.  359,  n.  lication  of  libels  tending  to  injure  one  in 


(a)  But  a  publication  made  pursuant  (h)  But  see  Emack  v.  Kane,  34  Fed.  R. 

to  a  conspiracy  to  injure  plaintiffs  business     46. 
may  be  restrained.     Casey  v.  Cincinnati 
Typ.  Union,  45  Fed.  R.  135. 


THE   RIGHTS    OF   PERSONS.  83 

The  definition  of  slander  is  not  so  broad  as  that  of  libel.  The 
false  charge  must  fall  within  one  of  four  principal  heads  :  — 

(1)  That  the  party  aspersed  has  committed  an  infamous  crime  or 
one  involving  moral  turpitude  ;  (2)  that  he  has  one  of  certain  conta- 
gious diseases  unfitting  him  for  social  intercourse  ;  (3)  that  he  is  in- 
competent to  follow  his  trade,  profession,  or  employment ;  (4)  any 
other  imputation  of  a  defamatory  nature  from  which  special  pecu- 
niary damage  has  ensued,  which  damage  must  be  alleged  and  proved. 

It  may  be  libellous  to  print  and  publish  that  which  it  would 
not  be  slanderous  to  utter.  Slander  may  more  generally  be 
classified  into  slander  2?er  se,  embracing  the  first  three  classes 
above  stated  ;  and  slander  with  special  damage.  The  cases  that 
have  been  noted  will  now  be  considered  in  their  order. 

(1)  A  charge  of  having  committed  a  crime.  —  It  is  not  necessary 
that  the  crime  charged  should  constitute  a  felony,  so  as  to  be 
punishable  with  death,  or  in  New  York  by  imprisonment  in  the 
State  prison.  It  may  be  a  crime  of  the  minor  grade  termed 
a  misdemeanor  if  it  involve  moral  turpitude.  For  example,  it 
would  be  slanderous  to  say  to  another,  "  You  have  removed  my 
landmark,  and  cursed  be  he  who  removes  his  neighbor's  land- 
mark," where  it  is  made  a  crime  to  remove  a  landmark. ^  On 
the  same  principle,  falsely  to  charge  one  with  having  written  and 
published  a  libel  is  in  itself  slanderous.^  On  the  other  hand,  in 
the  absence  of  a  statute  it  is  not  slander  to  charge  one  falsely  with 
having  committed  a  breach  of  trust,  as  that  is  not  a  crime  at 
common  law ; -^  nor  with  having  committed  adultery.  In  these 
last  two  cases  the  acts  specified  are  made  crimes  in  some  of  the 
States  by  statute.  In  that  case,  the  charge  would  be  slanderous.* 
On  the  other  hand,  if  the  act  charged  were  a  crime  with  no  im- 
moral element,  there  would  be  no  slander.  An  instance  is  a 
simple  assault  and  battery. 

his  trade.     Great  difficulty  has  heen  expe-  well    as    written    defamation.     Hermann 

rienced  in  applying  this  new  rule,  and  it  Loog  v.  Bean,  L.  R.  26  Ch.  D.  306  (Court 

has  heen  adjudged  that  the  court  will  not  of  Appeal). 

grant  the  injunction  except  in  the  clearest  ^  Young  v.  Miller,  3  Hill,  21  ;    Todd 

cases,  where  ajury  would  say  or  reasonably  v.  Rough,  10  Serg.  &  R.  18. 

be  expected  to  say  that  the   matter  was  2  Andres  v.  Koppenheafer,    3   Serg.  & 

libellous.     Liverpool,  &c.    Association    v.  R.  2.'55. 

Smith,  L.  R.   37  Ch.    D.    170  (Court  of  ^  McClurg  v.  Ross,  5  Binn.  218. 

Appeal),  {a)     In  a  proper  case  the  injunc-  *  Abshire  v.  Cliue,  3  Ind.  115. 

tion  may  be  granted  to  restrain   oral  as 


(a)  See  also  CoUard  ■;;.  Marshall  [1892J,  Kekewich,  J.,  that  except  in  trade  libels 

1  Ch.  571  ;   Bonnard  v.  Ferryman  [1891]  injunctions  should  not  be  issued  until  the 

2  Ch.  269;    Lee   v.    Gibbings   67   L.  T.  case  has  been  submitted  to  a  jury.    See  also 
Rep.  263.     In  the  last  case  it  is  said  by  Jordan  v.  O'Connor,  27  Abb.  N.  C.  376. 


84  THE   LAW   OF   PERSONS. 

Ill  this  branch  of  slander,  the  law  infers  that  damage  will  be 
caused  by  the  statement,  even  though,  if  true,  the  person  slandered 
would  not  be  subjected  to  punishment.  The  slander  may  consist 
in  the  injury  to  the  reputation  which  would  naturally  flow  from 
the  charge.  It  will  accordingly  be  immaterial  that  the  crime  is 
charged  to  have  been  committed  in  another  State, ^  or  that 
through  lapse  of  time  it  could  not  be  prosecuted,^  or  even  if  it 
be  one  that  for  physiological  reasons  could  not  be  committed  with 
the  consequences  charged,  provided  that  the  hearers  thought  that 
it  could  be.^ 

In  interpreting  the  alleged  slanderous  words,  the  practice  for- 
merly was  to  give  them  the  meaning  most  favorable  to  the  slan- 
derer. This  was  the  so-called  mitior  sensus^  An  instance  or  two 
will  suffice.  In  one  case,  the  words  were,  "  Thou  art  a  thievish 
rogue,  and  hast  stolen  bars  of  iron  out  of  other  men's  windows." 
It  was  held  that  the  words  must  be  taken  to  mean  bars  of  iron 
fastened  in  the  windows  and  not  loose.  In  this  view,  there  was  no 
slander,  for  the  bars  were  then  real  estate,  and  one  cannot  steal 
real  estate.^  So  where  a  person  said  that  "  Sir  Thomas  Holt  struck 
his  cook  on  the  head  with  a  cleaver  and  cleaved  his  head,  so  that 
the  one  part  lay  on  one  shoulder  and  the  other  on  the  other,"  it 
was  held  that  there  was  no  cause  of  action,  since  though  Sir 
Thomas  might  have  cleaved  the  head  into  parts,  the  wound  might 
not  have  been  mortal.^  This  absurd  doctrine  has  long  since  been 
exploded.  The  correct  rule  is  to  take  that  meaning  which  the 
supposed  utterer  intended  to  convey.  Where  the  words  are  plain 
and  unambiguous,  the  ordinary  signification  should  be  given  to 
them.'^  Where  the  words  are  ambiguous  and  capable  of  two 
meanings,  they  must  be  submitted  to  the  jury  to  determine  their 
meaning.^  Words,  however,  will  not  be  strained  beyond  their 
ordinary  meaning  so  as  to  give  a  cause  of  action.  Thus  a  charge 
that  a  plaintiff  vrns  forsworn  does  not  mean  of  itself  that  he  was 
guilty  of  perjury,  but  it  must  further  be  made  to  appear  that  the 
words  were  spoken  of  a  judicial  proceeding.^     If,  however,  words 

1  Johnson  v.   Dicken,   4  Jones  (Mo.),  *  1  Rolle's  Abr.  71. 

580.  5  Powell  V.  Hutchins,  Cro.  Jac.  204. 

2  Van  Aukin  v.  Westfall,  14  Johns.  ^  Sir  Thomas  Holt  v.  Astgrigg,  Cro. 
233.                                                                       Jac.  184. 

s  Kennedy  v.  GifTord,   19  Wend.  296.  "^  Woolnoth  v.  Jleadows,  5  East,   463  ; 

Tlie   analysis   of    this   case   seems   to   be  Wright  v.  Paige,  3  Keyes,  581  ;  Hayes  v. 

that  while  the  crime  could  itself  be  com-  Ball,  72  N.  Y.  418. 

mitted,   its  existence,   as   it   was   urged,  ^  Woolnoth   v.    Meadows,    Wright    v. 

was  to  be  inferred  from  an  alleged  consc-  Paige,  Hayes  v.  Ball,  supra, 

qucnce  that  could  not  attend  its  commis-  ^  Holt  v.   Scholefield,  6  Term  R.   691. 

sion,  though  the  hearers  thought  or  might  If  the  words  "  peijured  hims(4t"  had  been 

have  thought  it  could.  used  there  might  liave  been  a  case  of  slan- 


THE    RIGHTS    OF    PERSONS.  85 

apparently  slanderous  are  so  much  qualified  as  that,  taking  the 
whole  statement  together,  no  charge  of  crime  is  made,  an  action 
will  not  lie.  Thus  to  say  that  a  man  who  conducts  himself  as 
the  plaintiff  does,  would  steal  does  not  amount  to  a  charge  of 
stealing. 

It  is  not  material  that  the  words  are  spoken  ironically,  or  in  the 
form  of  a  question,  or  in  an  indirect  way.  Slander  may  even  be 
communicated  by  intonations  of  the  voice.  In  this  class  of  cases 
the  true  line  of  inquiry  is,  what  was  the  understanding  of  those 
who  heard  the  slanderous  words  or  signs,  and  whether  the  fair 
construction  of  the  words,  etc.,  would  warrant  that  understanding.^ 

(2)  Words  imputing  a  contagious  disease.  —  This  does  not  mean 
an  imputation  that  the  person  charged  has  had  at  some  former 
time  such  a  disease,  but  that  he  had  it  when  the  charge  was  made.^ 
The  diseases  referred  to  are  loathsome  diseases  such  as  leprosy 
or  the  venereal  disease,  not  such  diseases  as  measles  or  scarlet 
fever.  There  are  not  many  decisions  under  this  branch  of  the 
subject.^ 

(3)  Words  affecting  a  person  in  his  trade,  office,  or  employment.  — 
In  order  that  such  words  be  actionable  per  se  they  must  affect 
the  person  charged  directly  in  his  employment,  etc.  Thus  to  say 
of  a  carpenter  that  he  is  a  liar,  or  of  a  justice  of  the  peace  that 
he  is  a  blackleg,*  is  not  slanderous  under  this  head,  though  the 
words  might  indirectly  injure  the  person  charged  with  his  cus- 
tomers or  the  public.  The  charge  must  be  in  substance  that  he 
does  not  understand  carpentry  in  the  one  case,  or  law  in  the 
other.  On  like  grounds,  it  has  been  held  not  actionable  to  say 
of  a  keeper  of  a  public  garden  that  he  was  a  dangerous  man.^ 
If,  on  the  other  hand,  the  words  are  spoken  of  the  plaintiff  in 
his  professional  character,  the  action  will  lie ;  as,  for  example, 
to  say  of  a  physician  that  "  he  is  no  doctor,  —  he  bought  his 
diploma  for  850  ;  "  ^  or  of  a  hotel-keeper  that  one  could  not  get  a 
decent  meal  or  bed  in  his  house.^  Charges  of  dishouesty  against 
tradesmen  fall  under  the  same  rule,^  and  also  charges  of  insol- 
vency or  bankruptcy.  It  is  doubtful  whether  a  charge  of  mis- 
management against  a  professional  man  in  a  particular  case  is 

der,  for  that  expression  has  the  technical  Kichols  v.  Guy,  2  Carter  (Ind.),  82  ;  Irons 

meaning  of  false   swearing  in  a  court  of  v.  Field,  9  R.  I.  216. 

justice.     Roberts  v.  Camden,  9  East,  93.  *  Van  Tassel  v.  Capron,  1  Den.  250. 

1  Gorhani  v.  Ives,  2  Wend.  534  ;  Sewall  ^  Ireland  v.  McGarvish,  1  Sandf.  155. 
V.  Catlin,  3  Wend.  291 ;    Gibson  v.  Wil-  6  Bergold  v.    Puchta,  2  Thonip.   &  C. 
liams,  4  Wend.  320  ;  Leonard  v.   Allen,  (Supreme  Ct.  N.  Y.)  532. 

11  Gush.   211  ;  Hayes  v.   Ball,  72  N.  Y.  ^  Trimmer  r.  Hiscock,  27  Hun,  364. 

418.  ^  Griffiths  v.  Lewis,  7  Q.  B.  (Ad.  &  EL). 

2  Smith  V.  Cook,  1  Alb.  Law  J.  162.  61. 

3  Williams  v.  Holdredge,  22  Barb.  396  ; 


86  THE   LAW   OF   PEKSONS. 

actionable.  It  would  appear  to  be  the  sounder  rule  that  general 
incompetency  must  be  charged,  (a) 

This  rule  has  been  so  strictly  interpreted  in  England  as  to  hold 
that  to  charge  a  clergyman  with  incontinency  is  not  actionable 
under  this  head,  unless  he  is  at  the  time  in  possession  of  some 
office  or  employment  of  profit.^  On  the  other  hand,  to  say  of  a 
clergyman  that  he  came  to  the  performance  of  divine  service  in 
a  towering  passion,  and  that  his  conduct  was  calculated  to  make 
infidels  of  his  congregation,  is  slanderous  per  se? 

(4)  Defamatory  matter  attended  with  special  damage.  —  Here 
two  elements  are  necessary :  The  words  must  be  defamatory  ; 
there  must  be  special  damage. 

If  the  words  are  not  defamatory  the  fact  of  special  damage  will 
not  suffice.  In  other  language,  words  not  defamatory  in  their 
nature  are  not  actionable  even  though  followed  by  special  dam- 
age.3  It  thus  follows  that  there  are  words  of  a  defamatory 
nature,  which  are  not  sufficiently  defamatory,  when  uttered  orally, 
to  create  a  cause  of  action  unless  special  damage  be  shown.^ 

It  may  be  useful  to  refer  to  some  words  of  this  class.^  "  Swind- 
ler," ",  "  a  defrauder,"  ^,  "  unprincipled,"  ^,  "  a  prover  under 
bankruptcy,"  ^,  "  a  gambler "  (unless  illegal  gambling  is  in- 
tended), «,  "  blackleg  "  /,  "  walked  the  street  for  a  living  " 
(spoken  of  a  woman),  9,  "  self-polluted,"  ^,  and  the  like,  are  not  of 
themselves  actionable.  Let  the  element  of  "  special  damage  "  be 
added  and  they  become  actionable.  The  damage  must  be  pecuniary 
in  its  nature.  Yery  slight  damage  of  this  kind  will  suffice,  such  as 
the  loss  of  the  hospitality  of  frieiids,  ',  even  of  a  single  dinner,  or 
an  opportunity  to  obtain  employment  or  to  marry,  ^.  The  dam- 
age, however,  must  be  directly  attributable  to  the  slanderous 
words.  Tims  if  a  man  were  charged  with  incontinence,  and  through 
mental  distress  lost  his  capacity  to  labor,  the  damage  would  be 
attributable  to  the  mental  distress,  and  there  would  be  no  cause 
of  action.^  (6)     The  same  rule  would  be  adopted  in  the  case  of  an 

1  Gallwey  v.  Marshall,  9  Exch.  294.  M.  &  P.  870;   e,  Forbes  v.  King,  1  Dowl. 

2  Walker  v.  Brogilen,  19  C.  B.  N.  s.  672  (libel);  /,  Barnett  v.  Allen,  3  H.  &  N. 
65.     (The  case  was  one  of  libel.)  S76;   g,   Wilby   ».    Elston,  8  C.  B.  142; 

3  Miller  v.  David,  L.  R.  9  C.  P.  118.  li.  Anonymous,  60  N.  Y.  262;  t,  Williams 
<  Kelly  V.  Partington,  f>  B.  &  Ad.  645.  v.  Hill,  19  Wend.  305;  4:,  Mcxxly  v.  Baker, 
^  These  same  words  might  be  libeHoiis    5  Cow.  351. 

if  written   and   pviblished.     o,  Saville  v.  ^  Terwilliger  w.  Wands,  17  N.  Y.  54, 

Jardine,  2  H.  Bl.  531  ;  b,  Eichardson  y.  overruling  several  earlier  cases ;  Allsop  w. 

Allen,  2  Chit.  657;  c,  Storey  v.  Challands,  Allsop,  5  H.  &  N.  534. 
8  C.  &  P.  234;  d,  Alexander  v.  Angle,   4 


(a)  See  Lynde  v.  Johnson,  39  Hun,  12,  by  the  jury  in  awarding  damages.     Ward 

and  cases  cited.  v.  Dean,  32  N.  Y.  St.  R.  270  ;  Hamilton 

{b)  Where    however   injury  has    been  v.  Euo,  16  Hun,  599. 
proved,  mental  suffering  may  be  considered 


THE   RIGHTS   OF   PERSONS.  87 

action  by  a  husband  for  loss  of  a  wife's  services.^  On  a  similar 
principle,  where  a  daughter's  character  had  been  assailed  by  de- 
rogatory words,  and  her  father  hearing  the  charge  refused  to  give 
her  some  articles  which  he  had  previously  promised  her,  and  at 
the  same  time  testified  that  he  did  not  at  any  time  believe  the 
charge,  it  was  held  that  there  was  no  cause  of  action,  the  loss 
of  the  articles  not  being  in  point  of  fact  attributable  to  the 
slanderous  words.^ 

G-eneral  principles  applicable  to  both  libel  and  slander, — 
Malice  is  a  necessary  ingredient  in  an  action  for  defamation. 
It  may  be  inferred  from  a  publication  without  excuse.  This  is 
called'  legal  malice  or  malice  in  law.  Legal  malice  exists  in  the 
absence  of  any  legal  excuse  for  the  publication.  It  is  no  excuse 
for  the  utterer  that  be  merely  repeated  what  he  heard  another 
person  say ,3  or  that  he  did  not  know  the  party  traduced.* 

There  are  however  occasions  where  a  person  has  a  right  to 
make  a  statement  as  to  the  character  of  another,  and  though  it 
turn  out  to  be  false,  no  action  will  lie  without  actual  proof  of 
malice,  which  is  then  termed  express  malice  or  malice  in  fact. 
In  some  special  instances  no  action  could  be  brought  even  though 
there  were  express  malice.  This  branch  of  the  subject  is  called 
the  doctrine  of  "  privileged  communications." 

A  privileged  communication  in  this  branch  of  the  law  is  a 
statement  made  by  a  person  who  has  a  right  to  make  it  for  cer- 
tain reasons,  such  as  the  protection  of  his  own  interests  or  those 
of  others  ;  or  it  may  be  made  in  the  course  of  an  application  for 
a  public  office  in  opposition  to  the  fitness  of  the  applicant,  or  in 
the  course  of  legal  or  parliamentary  proceedings.  It  may  be  that 
the  statement,  thougli  believed  to  be  true,  was  in  fact  false.  The 
person  making  it  will  still  be  protected  unless  lie  acted  maliciously, 
and  in  some  instances  he  is  protected  notwithstanding  malice. 

Privileged  communications  are  of  two  sorts,  —  those  absolutely 
and  those  conditionally  privileged.  A.  communication  of  this  kind 
is  said  to  be  conditionally  privileged,  when,  thougli  false,  it  is  made 
in  good  faith  and  without  malice.  If  it  be  both  false  and  known 
to  be  so,  the  party  making  it  will  be  liable.  A  communication  of 
this  kind  has  been  defined  to  be  "  one  made  in  good  faith  upon 
any  subject-matter  in  which  the  party  communicating  has  an 
interest  or  in  reference  to  which  he  has  a  dutii,  to  a  person  having 
a  corresponding  interest  or  duty,  although  it  contains  criminating 

1  Wilson  V.  Goit,  17  N.  Y.  442.  *  Dexter  v.    Spear,    4    Mason   C.    Ct. 

2  Anonymous,  60  N.  Y.  262.  115. 
*  Mapes  V.  "Weeks,  4  "Wend.  659  ;  In- 

man  v.  Foster,  8  Wend.  602. 


88  THE    LAW   OF   PERSONS. 

matter  which  without  this  privilege  would  be  slanderous  (or  libel- 
lous) and  actionable ; "  and  this  though  the  duty  be  not  a  legal 
one,  but  only  a  moral  or  social  duty  of  imperfect  obligation.^  (a) 
The  following  may  be  suggested  as  instances :  — 

(1)  Charges  made  against  persons  in  office  to  persons  placed 
over  them  and  having  power  to  oversee  their  conduct.^  This  has 
been  applied  in  England  to  a  charge  by  a  bishop  to  his  clergy  in 
convocation.^ 

(2)  Reports  of  proceedings  in  courts  of  justice.  The  report 
should  be  fair,  correct,  and  honestly  made.^  The  reporter  should 
not  mix  with  it  his  own  observations  and  conclusions.^  This  rule 
would  not  include  a  libellous  speech  by  counsel  given  without 
the  evidence  by  which  it  was  supported.^ 

(3)  Criticisms  upon  the  acts  of  public  men.  Such  acts  are 
always  open  to  fair  and  temperate  criticism.  This  proposition 
does  not  include  the  imputation  of  unjust  or  corrupt  motives.^ 
This  remark  also  applies  to  candidates  for  office.^ 

(4)  Confidential  communications  respecting  the  conduct  and 
character  of  servants,  tradesmen,  and  persons  in  a  fiduciary 
capacity. 

There  are  several  cases  falling  under  this  general  head.  A 
master  may  state  in  a  temperate  way  the  supposed  character  of  a 
former  servant  to  one  who  is  seeking  information  as  to  his  char- 
acter with  a  view  of  employing  him.  So  inquiries  may  be  made  and 
answered  as  to  the  solvency  of  a  tradesman  as  a  basis  for  transact- 
ing business  with  him.  Agencies  may  lawfully  be  established  for 
collecting  such  information,  and  they  may  properly  communicate  it 
to  persons  pecuniarily  interested  in  knowing  it.^(^)  A  letter  from 
a  son-in-law  to  a  mother-in-law  containing  advice  respecting  her 
proposed  marriage,  and  imputations  made  in  good  faith  upon  the 
character  of  the  party  whom  she  is  about  to  marry,  is  privileged.^*' 

1  Harrison  v.  Bush,  5  E.  &  B.  344,  ap-  6  Stiles  v.  Nokes,  7  East,  493. 
proved  in  Byam  D.  Collins,  111  N.  Y.  143,  ^  Kane  v.  Mulvany,   2  Ir.  Com.   Law, 
150.     See  to  the  same  effect  Toogood   v.     402. 

Spyring,   1  Cr.  M.  &  R.    181  ;  White  v.  ^  Parmiterv.  Coupland,  6  M.  &  W.  105. 

Nicholls,  3  How.  U.  S.  266,  291.  8  Dickeson  v.  Hilliard,  L.  R.  9  Exch. 

2  Fairman  v.  Ives,  5  B.  &  Aid.  C42.  79. 

^  Laughton  v.  Bishop  of  Sodor  &  Man,  ^  Ormsby  v.  Douglass,  37  N.  Y.  477. 

L.  R.  4  P.  C.  495.  10  Todd  v.    Hawkins,    8  C.    &   P.  88  ; 

*  llacdougal  V.  Knight,  L.  R.  17  Q.  B.  but  see    Byam    v.   Collins,    111    N.    Y. 

D.  636  (Court  of  Appeal).  143. 


(a)  But    a    communication    made    to  (b)  See  Sunderlin  ;».  Bradstveet,  46  N. 

others  as  well  as  to  the  person  interested  Y.  188  ;  Bradstreet  Co.  v.  Gill,   72  Tex. 

is  not  privileged.     Woods  v.  Wiman,  122  115.     Cf.  Johnson   v.   Bradstreet    Co.,  77 

N.  Y.  445  ;  Webber  v.  Vincent,  29  N.  Y.  Oa.  172;  Cossettet;.  Dun,  18  Can.  S.  C.  R. 

St.  Rep.  603.  222. 


THE   EIGHTS   OF   PERSONS.  89 

(5)  Criticisms  upon  literary  works  and  works  of  art.  There 
has  been  some  difference  of  opinion  among  judges  whether  this 
class  of  communications  to  the  public  upon  matters  of  public 
interest  belongs  under  the  head  of  "  privileged  communications." 
The  cases  are  cited  in  a  note.  The  later  view  is  that,  as  they  may 
be  made  by  any  person  whatever  to  the  public  at  large,  they  do 
not  resemble  closely  the  ordinary  case  of  privileged  communica- 
tions in  which  particular  persons  only  may  make  the  statements. 
If  there  is  any  distinction,  it  is,  in  the  opinion  of  an  eminent  judge, 
rather  "  academical  than  practical."  The  real  inquiry  is  whether 
in  the  opinion  of  the  jury  the  comment  goes  beyond  the  limits  of 
fair  criticism.  Criticism  is  not  fair  when  under  the  pretext  of 
criticising  an  author's  works,  an  opportunity  is  taken  to  attack 
his  character,  or  it  may  be,  to  convey  an  imputation  that  he  has 
written  something  which  he  has  not  written ;  and  has,  therefore, 
misdescribed  the  work.  Either  of  these  acts  may  reasonably  be 
regarded  as  travelling  beyond  the  limits  of  fair  criticism,  and 
would  then  be  actionable.^ 

The  next  class  of  privileged  communications  includes  those 
that  are  absolutely  privileged.  In  this  class  of  cases,  no  action 
will  lie,  even  though  the  statement  be  false  and  known  to  be  so, 
and  be  actually  malicious. 

An  instance  of  this  kind  is  an  observation  made  by  a  judge  in 
his  judicial  capacity  while  trying  a  cause  ;2  or  words  spoken  by 
an  advocate  during  a  trial  which  are  pertinent  to  the  issue  ;3  (a) 
or  words  used  by  a  suitor  in  his  own  defence  or  in  an  affidavit  in 
a  cause  ;  *  or  testimony  by  a  witness  having  reference  to  the  cause 
in  which  he  is  called.^ 

Another  class  of  cases  of  the  same  kind  is  presented  in  the 
course  of  legislative  debate.  It  is  a  settled  rule  that  a  member  of 
a  legislative  body  is  not  to  be  called  to  account  in  a  court  of  jus- 
tice for  alleged  slanderous  words  uttered  in  the  course  of  the 
performance  of  his  legislative  duties. 

This  doctrine  is  recognized  in  the  English  Bill  of  Rights,  and 

1  Mevivule  v.  Carson,  L.  R.  20  Q.   B.  ^  g^ott  v.  Stansfield,  L.  R.  3  Exch.  220. 

D.    275     (Court    of    Appeal),     approving  3  Munster  v.  Lamb,  L.  R.  11  Q.  B.  D. 

Campbell  v.  Spottiswoode,  3  B.  &  S.  760,  588  ;  Hodgson  v.    Scarlett,   1    B.   &   Aid. 

and  disapproving   Hen  wood  v.   Harrison,  232  ;  Maclce}'  v.  Ford,  5  H.  &  N.  792. 

L.  R.  7  C.  P.  606.     See  also  Macleod  v.  *  Revis  v.  Smith,  18  C.    B.  126  ;  Heu- 

Wakley,  3  C.  &  P.  313,  for  a  definition  of  derson  v.  Broomhead,  4  H.  &  N.  569. 

the  expression  "  fair  criticism."   For  a  case  &  Seaman  v.  Netherclift,  L.  R.  2  C.  P. 

of  a  tradesman's  advertisement,  see  Paris  Div.  53. 
V.  Levy,  9  C.  B.  n.  s.  342. 


(a)  See  the  dictum  of  Brett,  M.  R.,  in  the  course  of  a  judicial  proceeding  are  not 
Munster  v.  Lamb,  to  the  effect  that  even  actionable,  L.  R.  11  Q.  B.  D.  at  p.  605. 
irrelevant  words  spoken  by  an  advocate  in     But  see  Maulsby  v.  Reifsnider,  69  Md.  1-13. 


90  THE   LAW   OF   PEESONS. 

also  in  the  United  States  Constitution,^  where  the  language 
is  that  "  for  any  speech  or  debate  in  either  house  they  "  (the 
senators  or  representatives)  "  shall  not  be  questioned  in  any  other 
place."  The  word  "  questioned  "  has  a  technical  meaning,  and 
would  preclude  an  action  for  slander  or  libel.^  There  has  been 
doubt  as  to  the  point  whether  the  general  principle  would  protect 
a  publication  to  the  world  of  libellous  matter  in  speeches  of  mem- 
bers, reports  of  committees,  etc.  There  is  a  leading  case  in 
England  which  has  been  supposed  to  v/arrant  the  conclusion  that 
there  would  be  no  such  protection  to  printers  of  legislative 
reports.^  The  correct  rule  would  seem  to  be  that  the  official  pub- 
lication of  parliamentary  proceedings  in  a  fair  and  accurate 
manner  should  be  protected-  in  the  same  way  as  proceedings 
in  a  court  of  justice.  So  a  member  might  safely  publish  his 
speech  for  the  information  of  his  constituents,  while  he  ought 
not  to  be  permitted  to  make  use  of  his  position  and  privilege  to 
publish  libellous  matter  wantonly  and  without  any  substantial 
reason.  More  generally,  a  faithful  report  in  a  public  newspaper 
of  a  debate  in  a  legislative  body  containing  matter  disparaging  to 
the  character  of  an  individual,  which  had  been  spoken  in  the 
course  of  the  debate,  is  not  actionable  at  the  suit  of  the  person 
whose  character  has  been  called  in  question.^  {a)  If  a  communi- 
cation by  letter  to  A.  be  privileged,  and  by  mistake  the  letter  is 
addressed  to  B.,  it  is  still  privileged.^ 

The  true  ground  on  which  this  absolute  privilege  of  speech  and 
publication  rests  is  that  the  advantage  of  publicity  to  the  com- 
munity at  large  outweighs  any  private  injury  resulting  from  the 
publication.  Individual  rights  are  subordinated  to  the  public  good. 
It  has  recently  been  held  at  Nisi  Prius  that  if  a  person  courts 
the  alleged  slander  by  a  question,  it  is  privileged.*^ 

Defences  to  actions  for  defamation  are  of  two  general  kinds, — 
denial  and  justification.  Denial  puts  the  plaintiff  to  proof  of  his 
charges.  Justification  consists  of  an  answer  by  the  defendant 
that  his  charge  is  true. 

It  is  an  ancient  rule  in  a  civil  action  for  defamation  that  the 
truth  of  the  defamatory  words  is  a  complete  defence,  no  matter 

1  Art.  I.  §  6.  *  Wason  v.  Walter,  L.  R.  4  Q.  B.  73. 

2  The  same  provision  is  in  general  found  The  subject  is  (liscussed  by  Cockburn,  C. 
in  State  eonstitutioiis.  J.,  in  this  case  at  much  length  and  with 

3  Stockdale  v.  Hansard,  9  Ad.  &  El.  1.  great  abilit_v. 

This  decLsion  led  to  an  Act  of  Parliament,  ^  Tompson  v.  Dashwood,  L.  R.   11  Q. 

3  &  4  Vict.  c.  9,  giving  a  summary  protec-     B.  D.  43. 

tion  to  such  persons.  ^  Palmer  v.  Hummerston,  1  C.  &  E.  36. 

{a)  A  communication  made  to  the  Gov-  lation  is  conditionally  privileged.  Woods 
ernor  of  a  State  concerning  pending  legis-      .  \Viman,  122  N.  Y.  445. 


THE   EIGHTS   OF   PERSONS.  91 

how  malicious  the  utterer  may  have  been.  Malice  is  only  im- 
portant when  the  charge  is  false.  The  legal  theory  is  that  a  man 
can  have  no  legal  right  to  a  reputation  superior  to  that  which  his 
conduct  warrants,  and  that  he  is  accordingly  without  remedy 
against  one  who  aims  to  bring  about  a  complete  correspondence 
between  the  two.  This  reasoning  is,  however,  rather  specious 
than  solid,  particularly  in  that  large  class  of  cases  occurring  in 
actual  life,  where  one  has  abandoned  former  evil  practices  and  is 
leading  a  reformed  life.  A  malicious  disclosure  of  former  mis- 
deeds destroying  a  reputation  honestly  and  fairly  gained  by  later 
good  conduct,  should  have  no  legal  support.  Such  a  reputation 
should  be  treated  as  a  new  acquisition,  entitling  a  person  to 
protection  against  mere  malicious  attack.  Such,  however,  is  not 
the  law. 

At  this  point  there  is  a  wide  difference  between  a  criminal  and 
a  civil  action  for  libel.  The  ground  upon  which  the  criminal 
action  proceeds  is,  that  the  publication  of  the  libel  tends  to  a 
breach  of  the  peace.  There  is  an  old  remark  to  the  effect  that 
"  the  greater  the  truth,  the  greater  the  libel."  The  meaning  of 
this  apparent  paradox  is,  that  the  publication  of  the  truth  against 
a  person  is  more  likely  to  provoke  a  personal  attack  than  the  pub- 
lication of  a  falsehood  ;  in  the  latter  case,  the  person  libelled  might 
confide  in  his  own  integrity  of  purpose,  and  power  in  course  of 
time  to  "■  live  down  "  the  falsehood,  while  in  the  former,  he  might 
conclude  tliat  he  had  no  resource  except  to  challenge  or  chastise 
the  traducer.  Accordingly,  in  the  criminal  action  it  must  appear 
that  the  defendant  uttered  the  truth,  and  that  his  motives  were 
good,  and  that  the  ends  sought  to  be  attained  by  him  were  justifi- 
able, whereupon,  and  not  otherwise,  he  will  be  acquitted. 

The  theory  of  a  justification  in  civil  actions  is,  that  it  tacitly  ad- 
mits the  fact  that  the  slanderous  charge  was  made,  but  claims  that 
it  was  not  legally  wrong  to  make  and  publish  it,  because  it  was  true. 
It  must  be  set  up  by  the  defendant  in  his  answer ;  it  cannot  other- 
wise be  proved  at  the  trial.  It  is  a  rule  of  the  common  law,  that 
one  who  "  justifies  "  can  introduce  no  evidence  tending  to  prove 
the  truth,  unless  it  actually  proves  it.  The  result  of  this  rule  is, 
that  he  cannot  reduce  the  damages  by  any  evidence  tending  to 
prove  the  truth  of  the  charge.  The  same  rule  is  applied  if  he  does 
not  justify.  This  rule  was  thought  too  harsh  and  was  abrogated 
in  the  Code  of  Procedure  of  New  York,i  and  this  course  has  been 
followed  by  other  States.  Under  the  existing  theories,  a  de- 
fendant may  set  up  in  his  answer,  and  prove  at  the  trial,  whether 

1  See  also  N.  Y.  Code  of  Civ.  Pro.  §  535. 


92  THE   LAW   OF   PERSONS. 

he  "  justify  "  or  not,  "  mitigating  circumstances  "  of  the  kind 
ah-eady  stated,  as  well  as  others.^  While  this  may  not  be  fault- 
less logic,  since  strictly  speaking  mitigating  circumstances  admit 
the  charge  to  be  untrue,  while  a  justification  affirms  that  it  is  true, 
it  is  a  convenient  rule  in  practice,  avoiding  the  rigor  of  the  former 
rule  which  was  said  "  to  bind  the  defendant  hand  and  foot,  and  to 
hand  him  over  in  that  condition  to  the  jury." 

One  who  justifies  defamation  must  prove  his  case  with  great 
accuracy.  He  must  prove  the  very  thing  charged,  and  not  some 
equivalent  thing.  It  will  not  be  enough  to  prove  misconduct  of 
a  similar  character  to  that  alleged.  Thus  if  the  offence  charged 
were  perjury,  he  must  prove  all  the  particulars  technically  neces- 
sary to  constitute  the  charge  of  perjury,  such  as  an  oath  regularly 
administered,  a  judicial  proceeding,  testimony  false  and  known 
to  be  false  and  material  to  the  questions  in  hand.  Accordingly,  a 
charge  of  perjury  before  a  grand  jury  cannot  be  justified  by  proof 
of  perjury  in  an  application  to  a  magistrate  on  a  search-warrant.^ 
If  a  justification  is  attempted  and  fails,  it  is  deemed  to  be  a  wilful 
repetition  of  the  defamatory  charge,  and  serves  to  enhance  the 
damages.^  {a) 

Mitigatiiig  circumstances  are  sometimes  introduced  in  evidence, 
not  to  establish  the  charge,  but  to  reduce  the  damages  that  the 
plaintiff  claims  to  have  sustained.  The  following  leading  in- 
stances may  be  suggested :  — 

(1)  The  general  bad  character  of  the  plaintiff.  The  general 
character  is  commonly  in  issue  in  this  class  of  cases.*  It  will  not 
be  permitted  to  show  that  there  were  rumors  that  he  had  com- 
mitted the  particular  offence  charged.^ 

The  distinction  is  between  giving  evidence  of  the  plaintiff's 
general  character,  and  his  general  reputation  as  to  the  commis- 
sion of  specific  acts.  The  former  is  admissible ;  the  latter 
not.  It  may  be  shown  that  the  plaintiff  is  himself  a  common 
libeller,  but  not  that  he  has  published  a  distinct  libel  against  the 
defendant.*^' 

(2)  The  defendant  may  show  in  mitigation,  provocation  by  the 
plaintiff,  such  as  expressions  either  oral  or  written  calculated  to 

1  Bush  V.  Prosser,  11  N.  Y.  347  ;  Bis-  5  Waithman  w.  "Weaver,  11  Price,  257,  n.; 
bey  V.  Shaw,  12  N.  Y.  67.  Matson   v.    Buck,    5   Cow.   499  ;  Wolcott 

2  Palmer  v.  Haight,  2  Barb.  210.               v.  Hall,  6  Mass.   514;  Mapes  v.  Weeks,  4 

3  Fero  V.  Ruscoe,  4  N.  Y.  162.  See  Wend.  659  ;  Ininan  v.  Foster,  8  Wend. 
ante,  p.  91.  602. 

*  Stone  V.  Varney,  7  Met.  86;  Paddock  6  Maynard  v.  Beardsley,  7  Wend.  580  ; 

V.  Salisbury,  2  Cow.  811.  May  v.  Brown,  3  B.  &  C.  113. 

(«)  Cf.  Marx  V.  The  Press  Pub.  Co.,  134  461;  Cruikshank  v.  Gordon,  118  N.  Y. 
N.  Y.  561  ;  Holmes  v.  Jones,  121   N.  Y.     178. 


THE    RIGHTS    OF    PERSONS.  93 

provoke  him.^  These  must  relate  to  the  defamation  published  by 
the  defendant.  They  must,  moreover,  be  so  recent  as  to  raise 
a  fair  presumption  that  the  feelings  and  passions  excited  by 
the  publication  continue.  The  principle  on  which  provocation  is 
admitted  is  the  same  as  it  would  be  if  a  blow  were  inflicted  in  the 
heat  of  passion. 

(3)  It  may  be  shown  on  behalf  of  the  defendant  that  he  was 
insane,-  or  intoxicated,^  though  such  evidence  would  be  of  no 
avail  if  he  repeated  the  charge  when  he  regained  his  reason  or 
became  sober. 

(4)  Another  mitigating  circumstance  is  retraction  and  apology.* 
This  should  be  full  and  ample,  and  as  public  as  the  charge. 

(5)  Such  conduct  on  the  part  of  the  plaintiff  as  would  have 
induced  a  reasonable  man  to  suppose  him  guilty  of  the  thing 
charged.^  (a) 

(6)  Evidence  bearing  on  the  motives  of  the  defendant  explana- 
tory of  his  conduct  and  tending  to  disprove  actual  malice.^ 

But  the  defendant  cannot  show  by  way  of  mitigation  that  the 
plaintiff's  father  provoked  him ; '  nor  that  he  is  poor ;  ^  nor  that  he 
is  a  great  and  reckless  talker  and  that  no  one  believes  him  ; 
altliough  it  was  ruled  in  one  court  that  a  defendant  might  prove 
by  way  of  mitigation  that  he  was  so  besotted  by  a  long  course  of 
dissipation  and  that  his  character  was  so  depraved,  that  no  one 
who  knew  him  would  believe  him.  This  decision,  however,  is 
very  unsatisfactory,  as  it  allows  a  person  to  take  advantage  of 
his  own  baseness  of  character.  If  the  decision  had  been  directed 
to  mental  incompetence/  instead  of  depravity  of  character^  no  com- 
plaint could  have  been  made  of  it.^ 

There  remains  to  be  mentioned  the  subject  of  Slander  of  the 
Title  and  Quality  of  Property.  This  applies  to  both  real  and  per- 
sonal property ,1*^  including  copyright,  shares  of  stock,  etc^^     The 

1  Tarpley  v.  Blakey,  2  Bing.  N.  C.  The  defendant  is  thereupon  allowed  to  pay 
437  ;  Watts  v.  Fiaser,  7  Ad.  &  El.  223  ;  a  sum  of  money  into  court  by  way  of 
Child  V.  Homer,  13  Pick.  f.03.  amends. 

2  Yeates  v.  Reed,  4  Blackf.  (Ind.)  463.  ^  Minesinger  v.  Kerr,  9  Barr  (Pa.),  312. 

3  Howell  y.  Howell,  10  Ired.  (N.C),  84.  Contra,  Watson  ;;.   Moore,   2  Cush.   133; 

4  Hotchkiss  I'.  Oliphant,  2  Hill,   510.  Haywood  v.  Foster,  16  Ohio,  88. 
The  statute,  6  &  7  Vict.  c.  96,  provides  that  ^  Taylor  v.  Church,  8  N.  Y.  452. 
when  a  libel  is  published  in  a  public  news-  '  Underbill  v.  Taylor,  2  Barb.  348. 
paper  the  defendant  may  plead  that  it  was  *  Case  v.  Marks,  20  Conn.  248. 

so   published  without   actual  malice  and  ^  Gates  v.  Meredith,  7  Ind.  440. 

without  gross  negligence,  and  that  before  i"  Wren  v.  Weild,  L.  R.  4  Q.  B.  730. 

the  commencement  of  the  action  or  at  the  ^^  Malachy  v.  Soper,  3  Bing.  N.  C.  371  ; 

earliest  opportunity  afterwards,  he  had  in-  Like   v.   McKinstry,    3   Abb.    App.    Dec. 

serted  a  full  apology  in   the  newspaper.  (N.  Y.)  62  (growing  crops). 

(«)  Bronson  v.  Bruce,  59  Mich,  467. 


94  THE   LAW   OF   PEKSONS. 

essential  ingredients  of  the  case  are  that  there  must  be  a  false 
statement  as  to  title,  published  without  lawful  occasion,  accom- 
panied by  special  damage.  Proof  of  special  damage  is  equally 
necessary  whether  the  disparaging  words  are  written  or  oral. 
Written  disparagement  in  such  a  case  is  not. defamation  of  the 
owner  but  of  his  property,  and  he  can  only  claim  to  be  injured 
when  his  property  is  in  some  way  harmed. ^  Malice,  express 
or  implied,  is  a  necessary  ingredient  in  the  case.  It  will  be  a 
privileged  statement  if  made  in  good  faith  on  lawful  occasion 
and  without  malice.^ 

The  same  principle  by  the  recent  English  cases  is  extended  to 
depreciation  of  the  quality  of  goods  which  a  tradesman  has  for 
sale.  The  rule  is  laid  down  that  an  untrue  statement  disparaging 
a  man's  goods,  published  without  lawful  occasion  and  causing  him 
special  damage,  is  actionable.^ 

Personal  Liberty. 

The  right  to  personal  liberty  is  a  great  and  primordial  right  pro- 
tected not  only  by  the  law,  but  by  constitutional  provisions,  beyond 
the  clauses  of  Magna  Charta  already  referred  to.  One  of  these  is 
the  provision  that  excessive  bail  shall  not  be  required.*  Another 
is  the  right  of  the  people  to  be  secure  in  their  persons,  houses,  etc., 
against  unreasonable  searches  and  seizures,  and  that  no  warrant 
shall  issue  but  upon  probable  cause,  supported  by  oath  or  affir- 
mation, and  particularly  describing  the  persons  or  things  to  be 
seized. °  This  Amendment  was  aimed  at  the  abuse  in  England 
called  "  general  warrant,"  whereby  a  person  might  be  arrested 
without  cause  and  without  being  named  when  the  warrant  was 
issued  by  a  magistrate.  The  provision,  preventing  the  suspen- 
sion of  the  writ  of  habeas  corpus^  except  in  cases  of  rebellion 
or  invasion,  should  also  be  referred  to.  Similar  provisions  are 
found  in  State  constitutions. 

Where  personal  liberty  is  violated,  the  law  provides  both  a 
compensative  and  preventive  remedy.  Compensation  is  awarded 
as  the  result  of  an  action  for  damages,  called  an  action  for  false 

1  Kendall  v.  Stone,  5  N.  Y.  14  ;  Mala-  Macrae,  3  B.  &  S.  264,  by  the  statement 
chy  V.  Soper,  3  Bing.  N.  C.  37L  that  in  the  latter  case  there  was  no  express 

2  Wren  v.  Weild,  10  B.  &  S.  51  ;  Like  affirmation  that  the  disparaging  statement 
V.  McKinstry,  3  Abb.  App.  Dec.  (N.  Y.)  was  untrue,  pp.  222,  223. 

62,  s.  c.  4  Keyes,  397  ;  Steward  v.  Young,  *  U.  S.    Cons.  Art.    VIIL  of  Amend- 

L.  R.  5  C.  P.  122.  ments. 

8  Western  Counties  Company  v.  Lawes         ^  Art.  V.  of  Amendments. 
Chemical  Company,  L.  R.  9  Exch.  218.  ^  U.  S.  Cons.  Art.  L  §  9,  cL  2. 

This  case  explains  the  case  of  Young  v. 


THE   EIGHTS   OF   PERSONS.  95 

imprisonment.    The  principal  preventive  remedy,  and  the  only  one 
in  practical  use,  is  the  writ  of  habeas  corpus. 

The  issue  of  the  writ  of  habeas  corpus  is  not  merely  a  matter  of 
judicial  discretion.  A  party  imprisoned  is  entitled  to  it.  It  is  called 
a  "  writ  of  right,"  and  has  been  so  ever  since  Magna  Charta.i  Its 
provisions  were  eluded  or  substantially  disregarded  in  England  until 
the  time  of  Charles  II.  The  statute  of  31  Car.  11.  c.  2,  already 
referred  to,  restored  it  to  its.  proper  efficacy.  This  act  has  been 
in  substance  copied  by  legislatures  in  this  country.  There  is  a 
series  of  such  statutes  in  New  York,  commencing  with  the  year 
1787.  The  first  act  was  a  transcript  of  the  statute  of  Charles  II. 
Later  laws  have  beneficially  extended  the  operation  of  the  original 
enactments.2  It  will  not  be  possible,  without  too  much  detail,  to 
state  the  various  statutes  in  the  respective  States.  Only  an  out- 
line of  the  English  statute  will  be  given,  with  some  special  modifi- 
cations of  it  in  this  country.  The  topics  will  be  arranged  under 
the  following  heads :  I.  Who  may  be  an  applicant  for  the  writ. 
II  The  mode  of  procedure  down  to  the  decision  of  the  court  or 
judge.  III.  Remand  or  discharge.  IV.  Special  rules  as  to  habeas 
corpus  questions  in  the  Federal  courts.  V.  Habeas  corpus  and 
extradition. 

I.  The  Applicant.  —  The  question  as  to  the  person  who  may 
apply  for  the  writ  is  determined  by  the  language  of  the  statute  in 
each  State.  .  Under  the  English  act  of  Charles  II.  it  could  only  be 
applied  for  on  behalf  of  one  charged  with  a  criminal  offence.^  though 
that  is  no  longer  the  rule  there.  In  New  York  all  persons  re- 
strained of  their  liberty  under  any  pretence  whatever  may  apply, 
with  the  following  exceptions:  (1)  Where  the  detention  is  by 
process  of  the  courts  of  the  United  States  having  exclusive  juris- 
diction ;  (2)  or  on  the  final  judgment  or  decree  or  order  of  any 
court  of  civil  or  criminal  jurisdiction,  or  on  process  based  upon 
such  judgment,  etc.,  except  in  a  proceeding  to  punish  a  person  for 
contempt.3  The  distinction  is  thus  taken  between  a  mandate  of 
a  United  States  court ^  which  need  not  be  final,  and  other  judicial 
decrees  or  orders  which,  in  order  to  prevent  the  application  for 
the  writ,  must  be  final.  These  exceptions  rest  upon  the  suppo- 
sition that  the  court  or  tribunal  has  jurisdiction  over  the  subject 
on  which  it  professes  to  act.  If  it  has  no  jurisdiction,  the  pro- 
ceeding is  simply  void,  and  its    invalidity   may  accordingly  be 

1  It  is  a  writ  of  the  common  law.  Ex  1801,  ch.  65  ;  Rev,  Laws  of  1813,  ch.  57  ; 
parte  Besset,  6  Ad.  &  El.  x\.  s.  481,  per     Laws  of  1818,  ch.  277.    a) 

Denman,  C.  J.  8  Code  of  Civ.  Pro.  §§  2015,  2016. 

2  See  Laws  of  1787,   ch.  39 ;  Laws  of 

(a)  See  Code  of  Civ.  Pro.  (§§  1991,  2008-2066). 


96  THE   LAW   OF   PERSONS. 

tested  by  this  writ.^  The  writ  will  not  run  in  favor  of  an  alien 
enemy,  —  a  prisoner  of  war .2 

II.  Method  of  Procedure.  —  There  should  be  a  petition  veri- 
fied by  oath  (affidavit).  This  should  be  made  by  the  party  him- 
self, unless  it  is  shown  that  he  is  so  coerced  as  to  be  unable  to 
make  one.'^  When  it  may  be  made  by  some  person  acting  in  his 
behalf,*  it  should  set  forth  facts  showing  that  the  state  of  things 
exists  which  the  statute  contemplates  as  grounds  for  the  applica- 
tion. It  may  be  addressed  either  to  the  court  or  to  a  judge  at 
chambers.  The  act  of  issuing  the  writ  is  purely  ministerial,  and 
in  no  sense  judicial.^ 

When  the  petitioner  is  not  prohibited  by  law  from  prosecuting 
the  writ,  it  should  be  awarded  to  him.^  It  must  be  signed,  or  it 
need  not  be  obeyed.  In  substance  it  directs  the  person  to  whom 
it  is  addressed,  to  "  have  the  body  "  of  the  prisoner  with  the  time 
and  cause  of  the  detention  before  the  court  or  judge,  as  the  case 
may  be,  at  a  specified  time  and  place,  to  do  and  receive  what 
shall  be  considered  right,  and  to  have  then  there  the  writ  itself.''^ 
Special  provisions  are  commonly  found  as  to  the  service  of  the 
writ  both  as  to  persons  and  time.  If  the  writ  is  not  obeyed,  an 
"  attachment "  will  issue  for  the  disobedience.  An  attachment, 
as  here  intended,  is  a  proceeding  based  upon  the  theory  that 
a  contempt  of  court  has  been  committed,  and  the  party  is  taken 
into  close  custody.^  An  attachment  may  also  be  granted  for  an 
evasive  or  insufficient  "  return  "  to  the  writ.^ 

It  is  an  incident  to  this  class  of  proceedings  that  a  person  who 
is  committed  upon  warrants  and  the  like  is  entitled  to  have  a  copy 
of  the  papers  upon  proper  demand. ^°  If  the  custodian  of  the 
prisoner  desires  to  resist  the  discharge,  he  may  state  in  writing 
the  facts  on  which  he  claims  the  right  of  detention.  This  state- 
ment is  technically  called  "  a  return."  Care  should  be  taken  to 
make  the  return  sufficiently  full  and  complete,  or  an  attachment 

1  People  V.  Jacobs,  66  N.  Y.  8  ;  People  $1,000  to  the  use  of  the  petitioner.  Code 
V.  Neilson,  16  Hun,  214  ;  People,  ^a;  rel.     of  Civ.  Pro.  §  2020. 

Tweed  v.  Lisconib,  60  N.  Y.  559.  "     In  New  York  a  similar  writ  called  a 

2  Rex  V,  Scriever,  2  Burr.  765.  writ  of   certiorari  is  sometimes  granted. 
8  In  re  Parker,  5  M.  &  W.  32.  Code  of  Civ.  Pro.  §§  2022  and  2041. 

*  Rex   V.    Roddam,    Cowper   R.    672.  ^  Ex  parte  Bosen,    2  Lord  Kenyon,  289. 

This  was  a  case  of  a  habeas  corpus  to  tes-  This  rule  is    applied    in    England   even 

tify.  against  a  peer  of  the  realm.     Rex  v.  Earl 

°  Nash  V.  People,  36  N.  Y.  607.  Ferrers,  1  Burr.  631.    See  also  N.  Y.  Code 

6  A  heavy  penalty  is  imposed  in  New  of  Civ.  Pro.  §  2028. 

York  upon  either  judge  or  court  that  does  ^  King  v.  Winton,  5  Term  R.  89. 

not  award  the  writ  when  properly  applied  i<^  Huntley  v.  Lu.seombe,  2  B.  &  P.  530  ; 

for,  each  member  of  the  court  forfeiting  Sedley  ?^  Arbouin,  3Esp.  174.    See  penalty 

in  New  York  Code  of  Civ.  Pro.  §  2065. 


THE   EIGHTS   OF   PEESONS.  97 

will  issue  for  insufficiency.  In  New  York  the  substance  of  the 
return  is  specifically  laid  down  by  the  statute. ^ 

The  prisoner  is  allowed  by  the  practice  in  this  country  to  deny 
the  facts  stated  in  the  return.  In  such  a  case  he  is  said  to 
"  traverse  "  or  deny  the  return.  Such  a  denial  will  raise  an  issue 
or  question  of  fact  to  be  decided  by  the  court  or  judge.  («)  Facts 
that  are  not  traversed  or  denied  are  deemed  to  be  admitted,  and 
are  to  be  taken  as  true.^  (^b)  In  this  case  the  question  to  be  con- 
sidered is  one  of  law,  viz.,  whether  the  facts,  as  stated  in  the  return, 
constitute  a  sufficient  ground  for  detention. 

III.  Remand  and  Discharge.  —  The  question  before  the  tribu- 
nal will  be  whether  to  remand  the  prisoner  or  to  discharge  him. 
It  may  be  that  the  party,  though  subject  to  be  remanded,  is 
entitled  to  give  bail,  and  be  discharged  from  imprisonment  on 
that  ground.^ 

This  point  presents  an  inquiry  into  the  true  office  and  function 
of  a  writ  of  habeas  corpus.  Its  language  is  in  substance  a  direc- 
tion to  the  custodian  of  the  applicant  to  bring  the  body  of  the 
person  imprisoned  before  the  court  or  judge  to  do  and  receive 
what  is  considered  just.  Its  function  is  to  inquire  into  the  cause 
of  detention,  and  then  to  remand  or  to  discharge  as  the  rules  of  law 
may  require.  There  are  two  general  classes  of  cases  :  one,  where 
the  right  of  detention  is  claimed  upon  legal  papers  alleged  to 
authorize  detention,  such  as  Avarrants  by  magistrates,  final  com- 
mitments, and  the  like  ;  and  the  other  class,  where  the  right  of 
detention  is  claimed  without  any  documentary  authority,  but  upon 
general  principles  of  law,  such  as  the  claim  of  a  father  to  the  cus- 
tody of  a  child. 

In  the  first  class  of  cases  the  court  does  not  look  beyond  the 
apparent  or  "  colorable  "  power  of  the  magistrate  or  other  lawful 
authority  issuing  the  writ  or  mandate.  The  writ  of  habeas  corpus 
is  not  a  writ  of  review.^  Any  errors  committed  by  the  tribunal 
whose  proceedings  are  under  review  cannot  be  considered  in  this 
manner,  but  only  by  some  method  of  appeal,  (c)     The  great  in- 

1  Code  of  Civ.  Pro.  §  2026.  ate  note  prepared  by  the  reporter,  a  distin- 

2  Matter  of  Da  Costa,  1  Parker  Cr.  129.     gnished  lawyer,  Mr.  Nicholas  Hill,  in  3 
8  See  in  Xew  York,  Code  of  Civil  Pro-     Hill,  647,  in  an  Appendix  to  the  case  of 

cedure,  §§  2043,  2045-2047.  People  v.  McLeod,  1  Hill,  377;   and  25 

*  This  point  is  considered  in  an  elabor-     Wend.  483. 


(rt)  In  New  York  when  a  traverse   is  {h)    People    v.     Protestant    Episcopal 

interposed  to  the  return,  though  the  tra-  House  of  ]\Iercy,  128  N.  Y.  180. 
verse  is  not  demurred  to,  the  issue  is  made  (c)  People     v.     Protestant     Episcopal 

up  and  no  further  pleading  is  required.    In  House  of  Mercy,  supra, 
the  Matter  of  Simon,  37  N.  Y.  St.  Rep. 


98  THE   LAW   OF  PEKSONS. 

quiiy  is  as  to  the  existence  and  validity  of  the  process.^  (a)  There 
would  be  substantially  two  inquiries :  one,  did  the  tribunal  have 
jurisdiction ;  the  other,  have  the  forms  required  by  law  been  com- 
plied with  ?  2  When  any  new  fact  arises  after  conviction,  entitling 
a  party  to  a  discharge,  such  as  a  pardon  by  the  governor,  that  may 
be  considered  on  this  writ.  So  a  court  or  judge  may  determine 
whether  the  execution  issued  in  the  case  is. warranted  by  the 
judgment. 

These  general  rules  rest  upon  the  assumption  that  the  court  or 
tribunal,  whose  proceedings  are  the  subject  of  inquiry,  had  juris- 
diction over  the  matter  in  hand.  Without  this,  the  whole  pro- 
ceeding is  a  nullity,  and  any  detention  under  it  is  unlawful.  A 
judge  cannot  give  himself  jurisdiction  by  a  decision  that  he  pos- 
sesses it.^  (5)     He  must  actually  and  in  fact  have  it. 

If  the  prisoner  is  remanded,  he  must  be  sent  to  the  place  from 
which  he  came,  and  not  to  some  other  place.*  The  order  of 
remand  should  be  simple  and  not  encumbered  with  conditions 
imposed  by  the  judge. 

The  second  class  of  cases  will  now  be  considered.  In  a  con- 
test, for  example,  between  a  father  and  mother  for  the  custody  of 
a  child  by  means  of  this  writ,  the  court  simply  examines  the  ques- 
tion as  to  whether  the  child  is  deprived  of  its  liberty.  A  some- 
what arbitrary  distinction  is  made  to  the  effect  that  the  court  will 
only  interfere  when  the  child  is  under  fourteen  years  of  age.  If 
above  that  age,  the  child  is  at  liberty  to  exercise  its  discretion  as 
to  its  place  of  abode,  and  the  court  will  so  declare.^  When  under 
that  age,  the  custody  is  by  common  law  awarded  to  the  father,*^ 
on  the  ground  that  he  is  the  legal  guardian,  and  that  the  child  is 
under  "legal  restraints,"  unless  under  legal  custody.  The  whole 
subject  is  much  affected  by  statute.  This  will  be  adverted  to 
under  the  topic  of  Parent  and  Child." 

It  should  be  noted  that  a  court  of  chancery,  acting  as  general 
guardian  of  infants  and  of  their  interests,  has  a  far  more  extensive 
control  over  the  matter  of  custody  than  can  be  exercised  by  means 
of  the  writ  of  habeas  corpus.^ 

1  People  V.  Cassels,  5  Hill,  164  ;  Bennac  Eex  v.  Clarke,  1  Burr.  606  ;  In  re  Pearson, 
V.  People,  4  Barb.  31.  4  Moore,  366  ;  Rex  v.  Greenhill,  4  Ad.  & 

2  People  V.  Sheriff,  29  Barb.  622.  El.  624. 

8  Devlin's  Case,  5  Abb.  Pr.  281.  '  The  New  York  law  was  carefully  con- 

*  People  f.  Cowles,  4  Keyes,  38  ;  s.   c.  sidered  in  People  v.  Porter  alias  Cooper,  1 

3  Abb.  App.  Dec.  507.  Duer,  709. 

5  In  re  Connor,  16  Jr.  C.  L.  R.  112.  8  gee  Parent  and  Child,  post,  pp.  233- 

«  The  King  v.  Ward,   1  W.  Bl.  386  ;  267. 

(a)  See  People  v.  Protestant  Episcopal  (o)  Cf.  People  v.  Protestant  Episcopal 

House  of  Mercy,  128  N.  Y.  180.  House  of  Mercy,  133  N.  Y.  207. 


THE   RIGHTS   OF    PERSONS.  99 

If  there  appears  to  be  no  proper  ground  of  restraint  the  court 
makes  a  declaration  that  the  party  detained  is  at  liberty  to  go 
where  he  pleases,  unless  in  the  case  of  infants  under  fourteen, 
in  which  case  the  direction  would  regularly  be  that  the  custody 
be  awarded  to  the  father.  ^ 

When  discharged  the  prisoner  should  not  be  re-arrested  on 
the  same  state  of  facts  for  the  same  cause.  The  subject,  having 
been  passed  upon  judicially,  is  res  adjudicata,  and  must  stand 
as  final  unless  there  be  an  appeal  in  some  form.  Statutes  mark 
out  in  what  cases  a  different  state  of  facts  may  justify  a  re- 
arrest. ^     It  is  made  a  crime  to  violate  this  rule. 

It  is  in  accordance  with  the  spirit  on  which  the  writ  is  framed, 
that  if  persons  are  confined  on  a  criminal  charge,  and  are  not 
indicted  within  a  brief  period,  they  are  to  be  discharged  unless 
satisfactory  reasons  are  given  for  the  delay.  Similar  rules  are 
applied  to  persons  indicted  and  not  tried  within  a  reasonable 
time. 

There  are  cases  in  which  there  may  be  serious  danger  that 
the  requirements  of  the  writ  may  be  eluded  unless  more  active 
measures  are  resorted  to  than  the  writ  commonly  allows.  A 
statute  exists  in  New  York  to  meet  this  difficulty,  permitting  a 
loarrant  to  be  issued  which  would  at  once  bring  the  prisoner 
before  the  court  or  judge  to  be  dealt  with  according  to  law.^ 

IV.  Habeas  Corjms  in  the  United  States  Courts.  —  The  courts 
and  judges  of  the  United  States  are  authorized  to  issue  writs  of 
habeas  corpus.,  but  the  Supreme  Court  only  when  exercising  appel- 
late jurisdiction.*  (a)  As  the  United  States  courts  issue  the  writ 
under  the  common  law,  and  not  under  any  statute,  a  previous  de- 
cision refusing  a  discharge  is  no  bar  to  a  subsequent  application. ^ 

The  Federal  courts  can  bring  up  a  prisoner  from  jail  when  he 
is  committed  for  trial  before  a  United  States  court ;  or  in  custody 
under  color  of  United  States  authority ;  or  in  custody  for  an  act 
done  or  omitted  in  pursuance  of  United   States  authority;  or 

1  Rex  V.  Greenhill,  4  Ad.  &  El.  624 ;  N.  2055.  On  the  general  subject,  see  §§  2015- 
Y.  Code  of  Civ.  Pro.  §  2043.     An  order  of    2066. 

discharge  is  substituted  for  the  old  "  writ  4  Ex  parte  Watkins,   7  Pet.    568  ;  ex 

of  discharge."     Id.  §  2048.  parte  Milburn,  9   Pet.  794  n.  ,•  Matter  of 

2  N.  Y.  Code  of  Civ.  Pro.  §  2050.  Metzc(er,  5  How.  U.  S.  176;  In  re  Kaine, 

3  N.  Y.  Code   of  Civ.    Pro.  §§  2054,  14  How.  U.  S.  103. 

5  Ex  parte  Kaine,  3  Blatch.  1. 

(a)  Except  in  cases  affecting  ambassa-  Yerger,  8  Wall.  85.     As  to  the  power  of 

dors,  other  public  ministers  or  consuls,  or  the  United  States  Circuit  Court  of  Appeals 

those  in  which  a  State  is  a  party.     Ex  to  issue  the  writ,  see  In  re  Boles,  4  C.  Ct. 

parte  Hung  Hang,   108   U.  S.  552.      See  App.  1. 
also  ex  parte  Parks,  93  U.  S.  18  ;  ex  parte 


200  THE   LAW   OF   PEKSONS. 

where  his  detention  is  in  violation  of  the  United  States  Consti- 
tution, treaties,  or  laws;  or,  being  a  revenue  officer,  is  in  custody 
on  account  of  an  act  done  or  omitted  under  color  of  his  office  or 
under  color  of  any  revenue  law ;  or,  being  a  citizen  or  subject  of 
a  foreign  state,  and  domiciled  therein,  is  in  custody  for  an  act 
done  oi°omitted  under  any  alleged  right,  title,  authority,  privilege, 
protection,  or  exemption  claimed  under  the  commission,  order, 
or  sanction  of  any  foreign  state,  the  validity  and  effect  of  which 
depend  upon  the  law  of  nations,  or  unless  the  writ  is  necessary 
to  bring  the  prisoner  into  court  to  testify.  ^ 

The  Supreme  Court  will  not  grant  the  writ  to  review  convic- 
tions by  the  inferior  United  States  courts,  as  it  has  no  appellate 
jurisdiction  in  criminal  cases,  but  will  discharge  the  prisoner 
where  the  lower  court  had  no  jurisdiction  ;2  nor  will  that  court 
issue  the  writ  to  determine  the  question  whether  a  father  has  a 
right  to  the  custody  of  a  child  rather  than  the  mother.  ^  (a) 

A^ery  important  questions  arise  as  to  the  use  of  the  writ  where 
there  is  a  conflict  of  jurisdiction  between  a  Federal  and  a 
State  court.  It  is  easy  to  see  that  some  legal  machinery  must 
be  resorted  to  in  order  to  prevent  a  clashing  of  authority,  so 
that  State  courts  shall  not  improperly  interfere  with  persons 
held  in  custody  by  order  of  United  States  courts  or  vice  versd. 
A  leading  mode  of  making  these  separate  jurisdictions  inde- 
pendent and  efficient  is  the  writ  of  habeas  corpus. 

The  general  rule  is  that  where  a  person  is  properly  in  custody 
under  State  authority,  the  Circuit  Court  of  the  United  States  (the 
highest  court  of  original  jurisdiction)  has  no  authority  to  take 
the  accused  by  habeas  corpus  from  such  custody,  nor  has  a 
State  court  authority  to  remove  a  defendant  from  the  custody 
of  a  court  of  the  United  States.  "^ 

It  is  now,  after  great  diversity  of  judicial  opinion,  a  well- 
settled  rule  that  a  habeas  corpus  issued  by  a  State  court  or  judge 
has  no  effect  within  the  limits  of  the  authority  assigned  to  the 
United  States  by  the  Constitution.^  Should  a  State  writ  of 
habeas  corpus  issue  to  a  United  States  marshal  having  a  person 
in  custody  under  United  States  process,  he  would  properly  make 
a  return  of  the  facts  to  the  State  court,  etc.,  which  could  then 

1  U.  S.  Rev.  St.,  §§  751-753,  643.  *  United  States  v.  Kector,  5  McLean, 

2  Ex  parte  Kearny,  7  Wheat.   38  ;  ex     174. 

parte  Parks,  93  U.  S.  18.  5  Ableman  v.  Booth,  21  How.  U.S.  506. 

8  Ex  parte  Barry,  2  How.  U.  S.  65. 


(ri)  The  District  Courts  of  the  Unitea     586.    As  to  the  power  of  the  Circuit  Courts, 
States  have  no  authority  to  issue  the  writ     tlie  question  seems  to  be  in  doubt.     Id. 
iu  such  a  case.     In  re  Burrus,  136  U.  S. 


THE   RIGHTS   OF   PERSONS.  101 

proceed  no  further,  i  It  is  enough  that  the  prisoner  is  held  under 
authority  or  color  of  authority  of  the  United  States. ^  This  rule 
has  been  applied  to  the  case  of  an  enlisted  soldier  when  held 
by  an  officer  acting  under  authority  of  the  United  States,  and 
claiming  to  hold  him  in  that  character. ^  The  correct  view  is 
that  the  several  State  governments  are  distinct  and  independent 
of  each  other,  and  of  the  general  government.  If  a  dispute 
arise  between  them  as  to  their  enactments  or  jurisdiction,  the 
State  governments  must  give  way  until  the  tribunals  of  the 
United  States  have  settled  the  question.  Accordingly,  no  State 
judge  has  a  right  to  issue  a  writ  of  habeas  eorpvs  for  the  dis- 
charge of  a  person  held  under  the  authority  of,  and  by  an  officer 
of,  the  general  government.  "^  This  principle  was  applied  in  the 
case  cited  to  a  State  habeas  corpus  issued  to  effect  a  discharge 
of  an  alleged  enlisting  minor  from  the  custody  of  a  recruiting 
officer  of  the  United  States.  Other  cases  in  which  the  courts 
of  the  United  States  have  reviewed  an  arrest  or  detention  under 
the  order  of  State  authorities  will  be  found  collected  in  a  note.^ 

The  United  States  habeas  corpus  act  provides  among  other 
things  for  the  release  of  persons  who  are  in  custody  for  an  act 
done  "  in  pursuance  of  the  laws  of  the  United  States."  This  has 
been  held  to  include  the  case  of  a  judge  who,  while  travelling  to 
perform  circuit  duty  in  a  Circuit  Court  of  the  United  States,  was 
violently  assaulted  and  put  in  danger  of  his  life,  and  protected 
by  a  United  States  marshal,  who  killed  the  assailant.  The 
court  held  that  it  was  within  the  power  of  the  President  to  take 
measures  for  the  protection  of  the  judge,  and  that  the  depart- 
ment of  justice  was  the  proper  one  to  set  in  motion  the  means  of 
protection,  and  that  ihQ  marshal  had  proper  authority  to  pro- 
tect and  defend  the  judge.  It  was  determined  that  there  is  a 
"peace  "  of  the  United  States  as  well  as  of  a  State  (resemljling 
the  common-law  notion  of  "the  king's  peace"),  and  that  the 
United  States  marshal  in  upholding  it  stands  in  the  same  re- 
lation as  the  sheriff  does  in  maintaining  peace  in  a  county. 
Accordingly,  there  was  no  crime  committed  against  California, 
the  State  where  the  killing  took  place. ^ 

The  Supreme  Court  of  the  United  States  has  povrer  to  dis- 

1  Tarble's  Case,  13  Wall.  397.  The  Ex  parte  McCready,  Id.  598  ;  Be  Bull,  4 
Revised  Statutes  of  the  United  States  Dill.  323  ;  Brow'n  v.  United  States,  2 
must  be  consulted,  §§  751-766,  both  in-  Am.  L.  T.  N.  s.  464  ;  £:.r^rtr<c  Thompson, 
elusive.  15    Am.   Law    Reg.    n.  s.   522  ;     United 

2  Matter  of  Farrand,  1  Abb.  U.S.  140.  States  v.  McClay,  23  Int.  Rev.  Rec.  80  ; 
*  Re  Neill,  8  Rlateh.  156.  Ex  pnrfe  Robinson,  1  Bond,  39  ;  United 
«  Tarble's  Case,  13  Wall.  397.  States  v.  Doss,  11  Am.  Law  Reg.  N.  s 
s  Electoral  College  of  South  Carolina.  320. 

1  Hughes,  571;  Ex  parte  Tatein,  Id.  588  ;         6  In  re  Neagle,  135  U.  S.  1. 


102  THE  LAW   OF   PERSONS. 

charge  on  habeas  corpus  a  party  held  under  a  judgment  of  an 
inferior  court  of  the  United  States  acting  without  jurisdiction.  ^ 
This  rule  would  apply  to  a  case  of  imprisonment  under  an 
unconstitutional  law  of  Congress.  An  arrest  under  such  a  law 
would  be  substantially  a  wrongful  arrest,  and  if  a  court  should 
render  a  judgment  in  a  criminal  case  upon  it,  and  a  correspond- 
ing sentence,  it  would  be  without  jurisdiction.  It  could  be  sc- 
adjudged  by  the  Supreme  Court  in  the  exercise  of  its  appel- 
late jurisdiction. 2  But  if  the  court,  e.  </.,  a  court-martial,  has 
jurisdiction  over  the  offence  and  power  to  inflict  the  sentence 
given,  the  Supreme  Court  will  not  interfere.^  The  jurisdiction 
of  the  Supreme  Court  is  limited  to  the  single  question  of  the 
power  of  the  inferior  court  to  commit  the  prisoner  by  reason  of 
the  act  for  which  he  has  been  convicted.'* 

The  power  of  the  Federal  Courts  to  bring  up  on  habeas  corpus 
a  prisoner  held  under  arrest  upon  a  State  law  claimed  to  be  un- 
constitutional is  a  subject  which  has  assumed  much  importance 
since  the  adoption  of  the  Fourteenth  Amendment  to  the  United 
States  Constitution. 

It  being  now  settled  that  an  unconstitutional  law  is  void  and 
no  law,^  a  person  held  under  color  of  such  a  law  of  a  State  is 
detained  illegally  and  without  right.  He  can,  accordingly, 
test  the  validity  of  the  law  by  a  writ  of  habeas  corpus.  An  act 
of  Congress  authorizes  the  Supreme,  Circuit,  and  District  courts 
of  the  United  States  to  issue  such  a  writ  for  the  purpose  of 
inquiry  into  the  cause  of  restraint  in  specified  cases.  One  of 
these  is,  where  being  in  jail  the  prisoner  is  in  custody  in  viola- 
tion of  the  Constitution  or  of  a  law  or  treaty  of  the  United 
States.^  The  statute  confers  both  upon  the  Circuit  Court  and 
the  Supreme  Court,  the  power  to  issue  the  original  writ,  (a)  If 
the  writ  be  issued  by  the  Circuit  Court,  an  appeal  can  be  taken 
to  the  Supreme  Court. ''  Each  court  has  the  power  in  its  discre- 
tion to  discharge  the  prisoner  in  advance  of  his  trial  in  the  State 
court,  and  if  he  is  convicted,  the  power,  in  the  exercise  of  a  like 
discretion,  to  discharge  him  summarily  on  habeas  corpus,  or  to 
leave  him  to  his  appeal  to  a  higher  State  court,  and  if  that  fails, 

1  Ex  parte  Lange,  18  Wall.  163.  6  U.S.  Rev.  St.  §§  751-753,  etc.;  also 

2  Ex  parte  Siebold,  100  U,  S.  371  ;  Ex     ch.  353,  Laws  1885. 

parte  Virginia,  Id.  339.  ^  The  aj)peal  could  not  be  taken  as  the 

3  Ex  parte  Mason,  105  U.  S.  696.  law  stood  in  1884.     Ex  parte  Royall,  112 
*  Ex  parte  Rowland,   104  U.    S.   604;     U.    S.   181.       Appellate  jurisdiction    was 

Ex  parte  Curtis,  106  U.  S.  371  ;  Ex  parte     conferred  by  ch.  353  of  the  laws  of  1885. 
Yarbrough,  110  U.  S.  651.  Ex  parte  Royall,  117  U.  S.  241. 

6  Ex  parte  Siebold,  100  U.  S.  371,  376. 


(a)  Cf.  ante,  p.  99. 


THE   RIGHTS   OF   PERSONS.  103 

to  entertain  a  new  application  for  a  discharge.  As  between 
the  State  and  United  States  courts  conflicts  should,  if  possible, 
be  avoided.  Due  comity  or  forbearance  is  a  principle  of  right 
and  of  law.  ^  (a)  It  might,  accordingly,  be  a  wise  exercise  of  dis- 
cretion on  the  part  of  a  Federal  court  to  delay  all  action  until 
the  State  court  had  finished  its  dealing  with  the  case.  Still,  if 
the  circumstances  require  it,  the  Federal  court  may  proceed  at 
once  to  dispose  of  the  case.^  A  writ  of  habeas  corpus  is  in  its 
nature  a  civil  proceeding,  even  where  it  is  used  to  get  rid  of  a 
criminal  prosecution.^ 

Y.  Habeas  Corpus  and  Extradition.  —  By  the  term  "  extradi- 
tion," in  modern  law,  is  meant  the  mode  provided  by  treaty,  or 
other  agreement  or  constitutional  provision,  whereby  fugitives 
from  justice  found  in  a  particular  country  or  State  are  delivered 
to  the  authorities  of  the  country  or  State  where  the  crime  is 
alleged  to  have  been  committed. 

The  principal  cases'to  be  considered  arise  between  one  State 
or  Territory  of  the  United  States  and  another  State  or  Territory, 
and  also  between  the  United  States  considered  as  a  nation  and 
a  foreign  country.  The  first  of  these  will  be  termed  "Inter- 
state Extradition,"  and  the  other  "Foreign  Extradition." 

The  necessity  of  extradition  treaties  or  ordinances  grows  out 
of  certain  rules  of  public  law.  One  is,  that  the  crime  in  ques- 
tion is  committed  solely  against  the  law  of  the  State  in  which 
the  alleged  criminal  is  at  the  time  of  its  commission.  The 
element  of  locality  is  deemed  to  have  entered  so  fully  into  the 
case  that  the  trial  can  only  be  had  in  that  State.  Another  rule 
is,  that  the  injured  State  has  no  right  to  enter  by  its  officials 
into  the  territory  of  the  State  where  the  offender  may  happen  to 
be,  with  the  view  of  arresting  and  capturing  him.  Such  an  act, 
no  matter  what  the  motive  may  have  been,  would  be  a  gross  vio- 
lation of  international  law.  Finally,  the  State  or  country  where 
the  fugitive  is,  is  under  no  duty  imposed  upon  it  by  the  rules 
of  international  law,  to  surrender  him.  This  is  certainly  the 
prevailing  view  of  able  jurists,  though  not  without  dissent.^ 

1  Covell  V.  Heymaii,  111  U.  S.  176,  attention  of  the  Supreme  Court  of  the 
182  ;  Ex  ijarte  Koyall,  117  U.  S.  241  United  States  in  the  case  of  Holmes  v. 
(fia&ras  co?-;ras  in  the  Circuit  Court).  Ap-  Jennison,  14  Pet.  540  (1840).  The  ques- 
plication  by  the  same  petitioner  by  original  tion  arose  on  a  writ  of  habeas  corpus  is- 
writ.     Id.  254.  suing  from  the  court  of  Vermont  addressed 

2  Ex  parte  Bridges,  2  Woods,  C.  Ct.  to  a  sheriff  who  made  a  "return"  that 
428.  Holmes  was  held  under  the  warrant  of  the 

3  Ex  parte  Tom  Tong,  108  U.  S.  556.       governor  of  the  State  for  delivery  to  the 
*  This  question  was  first  brought  to  the     authorities  of  Lower  Canada  for  a  crime  al- 

(rt)  Cook  V.  Hart,  146  U.  S.  183  ;  In  re  Wood,  140  U.  S.  278. 


104  THE  LAW   OF   PERSONS. 

(1.)  Interstate  Extradition,  {h)  —  This  is  provided  for  in  the 
United  States  Constitution. ^  The  words  are  these:  "A  person 
charged  in  any  State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice  and  be  found  in  another  State,  shall,  on 
demand  of  the  executive  authority  of  the  State  from  which  he 
fled,  be  delivered  up,  to  be  removed  to  the  State  having  jurisdic- 
tion of  the  crime. " 

This  provision  was  supplemented  by  an  act  of  Congress  passed 
Feb.  12,  1793.  It  is  now  incorporated  into  the  Revised 
Statutes.  2  The  section  referred  to  provides  that  whenever  the 
executive  authority  of  a  State  or  Territory  making,  in  substance, 
the  demand  for  surrender  upon  any  other  State  or  Territory,  pro- 
duces a  copy  of  an  indictment  found  or  an  affidavit  made  before 
a  magistrate  of  any  State  or  Territory  certified  as  authentic  by 
the  governor,  etc.,  charging  the  person  demanded  with  having 
committed  a  crime,  it  shall  be  the  duty  of  the  executive  authority 
of  the  State  or  Territory  to  which  the  person  charged  with  com- 
mitting the  crime  has  fled,  to  cause  him  to  be  arrested  and 
secured.  Notice  of  the  arrest  is  to  be  given  to  the  demanding 
executive  or  his  agent,  and  delivery  is  to  be  made  to  such  agent 
when  he  shall  appear. 

For  the  sake  of  brevity,  in  the  further  development  of  the 
subject,  the  Territories  will  be  assumed  to  be  included  in  the 
term  "States,"  and  the  States  affected  by  the  surrender  will  be 

leged  to  have  been  committed  there  by  case,  p.  598.)  It  was  decided  in  Matter 
him.  Hohnes  was  remanded  to  custody  of  Metzger,  5  How.  U.  S.  176,  that  the 
by  the  Vermont  court,  and  its  decision  surrender  of  fugitives  from  justice  is  a 
was  brought  under  review  in  the  Supreme  matter  of  conventional  arrangement  be- 
Court  of  the  United  States.  The  judges  tween  States,  and  that  no  obligation  is 
of  that  court  were  equally  divided  in  imposed  by  the  law  of  nations.  See  also 
opinion  upon  some  of  the  questions  in  the  United  States  v.  Davis,  2  Suran.  482. 
case.  The  majority  of  the  court  were  of  (Mem.).  A  different  view  was  taken  by 
the  opinion  that  a  State  of  the  Union  had  Chancellor  Kent  in  the  Matter  of  Wash- 
no  power  under  the  Constitution  of  the  burn,  4  Johns.  Ch.  106,  where  he  held  that 
United  States  to  surrender  a  fugitive  from  it  was  the  law  and  usage  of  nations  to  de- 
justice  to  a  foreign  power.  The  United  liver  up  offenders  charged  with  felony  and 
States,  they  thought,  is  the  sole  organ  of  other  high  crimes  to  the  nation  from  which 
political  communication  with  a  foreign  they  had  fled.  This  opinion  must  be  re- 
country  (opinion  of  Taney,  C.  J.,  con-  garded  as  overruled  in  this  country,  (a) 
curred  in  by  Justices  Story,  McLean,  i  Art.  IV.,  §  2,  cl.  2. 
and  Wayne,  pp.  561-579.  See  also  the  2  §  5273. 
note  of  the  reporter  at  the   end  of  the 


{a)  See  United  States  v.  Rauscher,  119  fugitives  from  justice  by  one  State  of  the 

U.  S.  407,  411,  412.  Union  to  another  is  inaccurate  and  mis- 

(h)  Mr.  Moore,  in  his  work  on  extradi-  leading.     The  proper  term,  in  his  opinion 

tion,  says  that  the  use  of  the  term  "Ex-  is  "Rendition."      Moore  on  Extradition, 

tradition "  to   describe  the   surrender  of  §  516. 


THE   RIGHTS   OF   PEESONS.  105 

termed  respectively  the  "  demanding  State  "  and  the   "  asylum 
State." 

The  following  are  the  material  points  to  be  considered:  — 
(a)  The  crime  by  reason  of  which  the  demand  for  surrender 
may  be  made,  (h)  The  indictment  or  the  affidavit  presented  on 
the  part  of  the  demanding  State,  (c)  The  requirement  that  the 
person  demanded  must  be  a  fugitive  from  justice,  (d)  The  duty 
of  the  asylum  State,  (e)  The  mode  of  discharging  the  duty, 
including  the  executive  warrant. 

(a)  The  crijne  for  which  the  demand  may  be  made  is  not 
specifically  named  in  the  Constitution.  The  correct  construction 
is,  that  it  is  a  crime  under  the  laws  of  the  demanding  State.  ^ 
It  includes  not  merely  the  higher  grade  of  crimes,  known  as 
felonies,  but  also  misdemeanors.  ^ 

(b)  The  Indictment  or  Affidavit.  —  While  either  a  State  or  Ter- 
ritory 3  may  make  a  demand,  the  so-called  "  Cherokee  nation  " 
cannot,  as  it  is  neither  a  State  nor  a  Territory. ^  The  word 
"indictment"  here  refers  to  the  ordinary  finding  by  a  grand 
jury  that  a  specific  crime  has  been  committed  by  a  particular 
person  named  therein,  while  an  affidavit  means  a  written  state- 
ment under  oath  containing  detailed  allegations,  which,  if  true, 
would  amount  to  a  charge  of  crime. 

The  functions  of  a  writ  of  habeas  corpus  are  for  the  most  part 
called  into  requisition  to  test  the  legal  validity  of  these  instru- 
ments. The  courts  of  the  United  States,  as  well  as  of  a  State, 
may  upon  this  writ  consider  the  question  whether  the  indictment 
or  affidavit  is  so  framed  as  to  contain  a  sufficient  charge  of 
crime.  The  question  of  the  truth  ov  falsity  of  the  charges  is  not 
before  the  court.  Their  truth  is  for  the  time  being  assumed. 
The  sufficiency  of  the  statement  is  really  a  matter  of  interpreta- 
tion of  a  written  document,  and  this  is  regularly  a  question 
of  law.^  The  reason  why  the  prisoner  can  bring  the  matter 
before  a  United  States  tribunal  is,  that  the  prisoner  is  held 
under  color  of  authority  derived  from  the  Constitution  and  laws 
of  the  United  States. « 

The  jurisdiction  of  the  courts  of  the  asylum  State,  or  other 
State  where  the  prisoner  happens  to  be,  is  not  excluded,  since 
though  the  prisoner  is  held  under  authority  derived  from  the 
Federal  law,  he  is  not  held  by  an  officer  of  the  United  States. ^ 

1  Kentucky    v.    Dennison,     24    How.  *  -Erprerie  Morgan,  20  Fed.  R.  298. 
U.  S.  66.                                                                    5  Roberts  v.  Reilly,  116  U.  S.  80,  95. 

2  Ex  parte  Reggel,  114  U.  S.  642.  6  Roberts  v.  Reilly,  supra,  p.  94. 

8  As  to  a  Territory,  see  £'x /x«r^c  Reggel,  ^  jjobb  v.  Connolly,  11]  U.  S.  624. 

supra. 


IQQ  THE   LAW   OF   PERSONS. 

In  testing  the  validity  of  the  indictment,  rGo:ard  is  had  to 
tlie  law  of  "the  State  where  it  was  found,  though  it  may  not 
conform  to  technical  rules  prevailing  in  the  law  of  the  asy- 
lum State.  1  It  is  not  within  the  power  of  the  executive  of 
the  asylum  State  to  decide  upon  the  sufficiency  of  the  indict- 
ment. 2  It  is  a  matter  for  the  judiciary  to  determine  whether 
the  indictment  or  affidavit  presents  a  prima  facie  case.^  If  so, 
the  fugitive  should  be  surrendered.  The  facts  to  that  extent 
must  be  set  out  in  the  papers.''  A  "complaint"  in  an  ac- 
tion is  not  necessarily  equivalent  to  an  affidavit,  and  if  it 
is  claimed  to  be,  a  copy  should  be  produced  to  the  court  for  its 
inspection.^ 

(c)  The  Person  demanded  must  he  a  Fugitive  from  Justice. — 
The  most  comprehensive  description  of  a  "  fugitive  "  is  found 
in  a  recent  case.^  It  is  there  said  that  to  be  a  fugitive  in  the 
sense  of  the  extradition  law,  "  it  is  not  necessary  that  the  party 
charged  should  have  left  the  State  in  which  the  crime  is  alleged 
to  have  been  committed,  after  an  indictment  found,  or  for  the 
purpose  of  avoiding  a  prosecution  anticipated  or  begun,  but 
simply  that,  having  within  a  State  committed  that  which,  by 
its  laws,  constitutes  a  crime,  when  he  is  sought  to  be  subjected 
to  its  criminal  process  to  answer  for  his  offence,  he  has  left 
its  jurisdiction,  and  is  found  within  the  territory  of  another." 
More  briefly,  one  is  a  fugitive  if  he  committed  the  crime  in 
one  State,  and  when  wanted  by  its  authorities,  he  is  found  in 
another  State. 

The  course  of  reasoning  in  the  above  statement  of  the  law 
seems  to  be,  that  from  the  fact  that  he  is  found  in  another 
State,  it  may  be  conclusively  presumed  that  he  fied  from  justice. 
Otherwise,  the  words  of  the  Constitution  will  not  be  fully  carried 
out,  since  it  is  required  both  that  "he  shall  flee  from  justice 
and  be  found  in  another  State. " "'  (a) 

The  question  whether  one  is  a  fugitive  or  not  is  a  question  of 
fact,  to  be  determined  by  the  governor  of  the  asylum  State. 
It  is  not  settled  whether  his  decision  is  conclusive.^  There 
are  some   decisions  to  the  effect  that  it  is  not,  and  that  the 

1  Ex  parte  Eeggel,  114  U.  S.  642.  5  gtate  v.  Richardson,  34  Minn.  115. 

2  People  V.  Byrnes,  33  Hun,  98.  «  Roberts  ■;;.  Eeilly,  116  U.  S.  80,  97. 
^  Ex  parte  Reggel,  stq^ra  ;  Roberts  v.          "^  Art.  IV.  §  2,  cl.  2. 

Reilly,  116  U.  S.  80,  95.  8  Roberts  v.  Reilly,  supra,  p.  95. 

4  Smith  V.  State,  21  Neb.  552. 

( a)  One  who  personally,  within  a  State,     consunimntion,  is  a  fugitive  from  justice. 
has  set  in  motion  the  machinery  for  crime.     In  re  Cook,  49  Fed.  R.  833. 
and  departs  from  the  jurisdiction  before  its 


THE   EIGHTS   OF   PERSONS.  107 

governor's  determination  may  be  reviewed  on  a  writ  of  habeas 
corpus,  ^(a) 

(d)  The  Duty  of  the  AsTjhnn  State.  —  It  is  the  duty  of  the  gov- 
ernor, as  representing  that  State,  to  comply  with  the  demand 
for  the  extradition  of  the  fugitive.  There  is,  liowever,  no 
mode  of  enforcing  this  duty.  The  Constitution  has  not  conferred 
any  power  in  this  respect,  although  it  provides  that  the  fugitive 
'■'■shall  be  delivered  up."  The  whole  matter  is  left  in  substance 
to  the  discretion  of  the  governor,  guided  or  influenced  by  a  sense 
of  puldic  duty  and  expediency. ^ 

(e)  The  Mode  of  Discharging  the  Duty,  including  the  Warrant.  — 
Assuming  that  the  governor  of  the  asylum  State  has  determined 
to  deliver  up  the  fugitive,  his  regular  course  is  to  issue  his 
warrant  to  a  sheriff  or  sheriffs  requiring  that  the  fugitive  be 
arrested  and  delivered  to  the  agent  of  the  demanding  governor 
to  be  carried  to  the  State  within  whose  jurisdiction  the  crime 
is  alleged  to  have  been  committed. ^ 

It  is  at  this  stage  of  the  proceedings  that  the  writ  of  habeas 
corpus  is  actually  resorted  to  for  the  purpose  of  testing  their 
validity.  It  is  not  seemly  for  the  court  to  interfere  while  the 
proceedings  are  pending  before  the  governor ;  but  when  he  has 
taken  final  action,  the  prisoner  has  a  right  to  a  judicial  decision, 
upon  the  question  whether  in  issuing  his  warrant  the  governor 
has  complied  with  the  rules  and  forms  of  law,  and  if  not,  the 
prisoner  is  entitled  to  a  discharge.  The  regular  course  is  to 
have  all  the  proceedings  returned  to  the  court,  including  the 
indictment  or  affidavit,  and  warrant.  It  has  been  made  a  ques- 
tion whether  the  governor  of  the  asylum  State  has  not  a 
discretion  to  return  simply  the  warrant,  and  so  withhold  from 
examination  the  indictment  or  affidavit.  Such  a  course  would 
seem  but  scant  justice  to  the  prisoner. 

The  New  York  courts  take  the  following  position  on  this 
important  subject:  If  the  return  to  the  writ  of  habeas  corpus 
not   only    includes   the    warrant,    but    also   the    indictment    or 

1  In  re  Mohr,  73  Ala.  503.  In  Jones  U.  S.  80,  the  papers  that  were  before  the 
V.  Leonard,  50  Iowa,  106,  it  was  held  that  court  are  fully  detailed  by  the  reporter, 
it  may  be  shown  that  the  prisoner  is  not  a  and  may  be  resorted  to  for  the  purpose  of 
fugitive.  In  Wilcox  v.  Nolze,  34  Ohio  making  applications  for  extradition,  since 
St.  520,  it  was  ruled  that  evidence  might  the  Supreme  Court  determined  that  the 
be  offered  to  show  that  the  prisoner  had  prisoner  was  properly  held  under  them, 
not  been  in  the  demanding  State.  A  form  of  requisition  and  a  warrant  of 

2  Kentucky  v.  Dennison,  24  How.  arrest  and  surrender  are  to  be  found  in  the 
U.  S.  66.  rejiort   of  Kingsbury's    Case,    106   Mass. 

**  In  the  case  of  Roberts  v.  Reilly,  116     224,  227. 

(a)  In  re  Cook,  49  Fed.  R.  833. 


108  THE   LAW   OF   PERSONS. 

affidavit  on  which  the  application  for  extradition  was  made,  the 
court  may  examine  into  the  sufficiency  of  the  statements  made 
in  those  papers. ^  On  the  other  hand,  if  nothing  is  returned 
but  the  executive  warrant,  and  this  contains  a  recital  of  facts 
sufficient  in  themselves  to  constitute  a  charge  of  crime,  there 
will  be  a  sufficient  ground  for  remanding  the  prisoner  to  custody, 
and  the  court  can  only  look  to  the  warrant.  ^ 

With  due  submission,  these  cases  cannot  be  reconciled  with 
the  view  of  the  Supreme  Court  of  the  United  States,  which  holds 
that  a  determination  of  the  point  whether  a  crime  is  charged  is 
a  question  of  Imv,  and  is  always  open  upon  the  face  of  the  papers 
to  judicial  inquiry,  on  an  application  for  a  discharge  under  a 
writ  of  habeas  corpus.^  Surely  a  governor  of  a  State  cannot 
finally  adjudicate  a  question  of  law.  Moreover,  principle 
requires  that  the  papers  on  which  any  prisoner  is  held  should 
always  be  open  to  the  examination  of  a  court  or  judge,  so  that 
the  cause  of  detention  may  be  tested  by  judicial  rules  and 
methods.  It  is  the  indictment  or  affidavit,  and  not  the  warrant, 
which  constitutes  the  charge.'^ 

The  right  of  the  demanding  State  to  ol)tain  the  fugitive  is  in 
no  way  superior  to  that  of  the  asylum  State  to  detain  him  to 
answer  for  crimes  committed  there.  If  held  by  law  in  the 
latter  State  to  answer  for  the  violation  of  its  laws,  the  governor 
may  properly  decline  to  deliver  him  until  its  demands  are 
satisfied.^ 

It  has  been  decided  that  the  prisoner  will  not  be  discharged, 
though  he  was  induced  by  stratagem  to  come  into  the  State 
where  the  crime  was  committed.^  The  asylum  State  cannot 
demand  the  return  of  the  prisoner,  even  though  he  were  taken 
away  by  force,  if  he  be  held  at  the  time  under  an  indictment  in 
the  demanding  State.  It  has  been  held  that  if  a  prisoner  be 
surrendered  to  a  demanding  State,  and  the  prosecution  against 
him  fail,  that  State  may  become  an  asylum  State,  and  surrender 
him  to  another  State  demanding  him  for  an  alleged  crime.  ^(«) 

1  People  V.  Brady,  56  N.  Y.  182.  °  The  cases  are  collected  in  notes  to 

2  People  V.  Pinkerton,  77  N.  Y.  245  ;  Taylor  v.  Taintor,  16  Wall.  366,  370, 
People  V.  Donohue,  84  N.  Y.  438,  442,  371.  He  may  even  be  detained  in  a  civil 
443.  suit.     Troutman's  Case,  4  Zab.  634. 

3  Roberts  v.  Reilly,  116  U.  S.  80,  95.  ^  Ex  parte  Brown,  28  Fed.  R.  653. 

4  Tullis  V.  Fleming,  69  Ind.  15.    People  •     '  Hackney  v.  Welsh,  107  Ind.  253. 
V.  Byrnes,  33  Hun,  98.                      

(«)  See  Matter  of  Hope,  7  N.  Y.  Crim.  the  arrest  of  one  who  had  been  extradited 

Rep.   406,    where    the    governor   of  New  fiom  a  third  State  by  the  State  of  New 

York  revoked  a  warrant  issued  on  the  ajv  York,  and  after  conviction  served  out  his 

plication  of  the  governor  of  Delaware  for  term. 


THE    RIGHTS   OF    PERSONS.  109 

Again,  if  a  surrendered  prisoner  be  tried  and  discharged,  he  may 
be  arrested  and  tried  without  being  permitted  to  leave  the  State, 
for  another  and  distinct  offence.  ^ 

Some  cases  intimate  that  one  extradited  can  only  be  tried  for 
the  particular  offence  with  which  he  was  charged,  on  the  appli- 
cation for  his  surrender. 2  (a)  However  this  may  be,  if  one  had 
been  illegally  and  by  force  brought  from  a  foreign  country  into 
one  State,  he  may  be  lawfully  surrendered  by  that  State  on 
demand,  to  any  other  State,  on  the  usual  application  for  "  inter- 
state extradition. "  ^  There  was  no  international  wrong  in  this 
case,  in  violation  of  a  treaty  or  otherwise.  There  was  nothing 
but  private  and  individual  wrong  in  bringing  the  prisoner  into 
the  first  State,  (b) 

A  State  may  to  a  certain  extent  supplement  the  legislation  of 
Congress  upon  this  subject,  by  providing  a  mode  of  arresting  a 
person  within  its  limits  provisionally,  to  await  the  order  of  a 
demanding  State. ^  Still,  there  can  properly  be  no  surrender  of 
a  fugitive  from  justice,  unless  proceedings  have  been  commenced 
against  him  in  the  State  in  which  the  crime  is  alleged  to  have 
been  committed.^ 

This  view  of  "  interstate  extradition  "  may  be  fitly  closed  by 
an  extract  from  a  letter  of  Oliver  Cromwell,  as  Lord  Protector, 
written  in  1653  to  the  inhabitants  of  Rhode  Island.  After 
several  directions,  he  closes  with  the  following  injunction: 
"Particularly  not  to  harbour,  entertain,  or  countenance  any 
malefactors,  who,  after  misdemeanours  committed,  shall,  for 
declining  the  justice  of  any  of  the  said  four  governments  " 
(meaning  the  New  England  colonies),  "  make  escape,  and  fli/  to 
you  for  shelter  and  protection,  but  to  render  them  up  to  the 
law."^  Here  is  the  substance  of  the  existing  article  of  the 
United  States  Constitution. 

1  State  V.  Stewart,  60  Wis.  587  ;  but  350(c);  Ex  parte  Rosenblat,  51  Cal.  285  ; 
see  l7i  re  Cannon,  47  Mich.  481.  JEx  parte  Cubreth,  49  Cal.  435. 

2  An  opposing  view  is  taken  in  the  ^  Ex  parte  White,  49  Cal.  433  ;  State 
United  States  Dist.  Ct.  for  N.  J.,  in  Matter  v.  Hufford,  28  Iowa,  391. 

of  No5'es,  17  Alb.  L.  J.  407,  citing  cases.  6  2  Thurloe's  State  Papers,  Ed.  Birch, 

3  Ker  V.  The  People,  110  111.  627.  p.  2  (1742). 
*  See  in  New  York,  Laws  of  1839,  ch. 


(a)  The  following  authorities  support  he  has  had  a  reasonable  opportunity  to 

the  view  that  the  prisoner  can  only  be  tried  return,  see  Matter  of  Baruch,  24  Abb.  N.  C. 

for  the  offence  for  which  he  was  extradited.  109  ;  Moletor  i\  Siiinen,  76  Wis.  308. 
Ex  parte  McKnight,  48  Ohio  St.  588  ;  In  (b)  See  Mahon  v.  Justice,  127  U.  S.  700. 

7-e  Fitton,  45  Fed.  R.  471.     See  also  Li  re  (c)  This  statute  is  repealed.     See  Lnws 

Cook,  49  Fed.  R.  833  ;  mitra,  Williams  v.  1886,  ch.  593,  §  1,  subdiv.  14.    The  subject 

Weber,  28  Pac.  E.  21  ;  People  v.  Cross,  is  now  regulated  by  Code  of  Grim.  Pro. 

135  N.  Y.  536,  afFg  64  Hun,  348.     That  §§  827-834. 
he  cannot  be  arrested  in  a  civil  suit  until 


110  THE   LAW   OF   PERSONS. 

(2)  Foreign  Extradition. —  By  this  expression,  as  here  used, 
is  meant  the  delivery  under  rules  of  law  by  one  nation  to  another 
of  fugitives  from  justice. 

It  was  at  one  time  supposed  by  some  jurists  that  a  nation  was 
under  an  obligation  by  the  rules  of  international  law  to  deliver 
up  for  trial  to  another  nation  on  demand  a  fugitive  from  its 
criminal  justice.'  The  better  opinion  now  is  that  there  is 
no  obligation  in  such  a  case,  though  a  nation  or  State  of  the 
Union  may  in  the  exercise  of  its  discretion  repel  criminals  from 
another  country  seeking  an  asylum  there,  and  deliver  them  up  to 
the  authorities  of  the  country  whence  they  came.^  So,  a  foreign 
State  might  have  a  statute  of  its  own,  without  any  international 
obligation  in  the  case,  authorizing  the  delivery  of  such  fugitives. 
Still,  there  would  be  no  strict  extradition  in  such  cases,  as  there 
would  be  no  obligation  upon  the  asylum  State  to  continue  its 
policy.  It  might  abandon  it  at  any  time.  True  extradition  only 
exists  when  there  is  a  right  of  one  State  or  country  to  demand 
from  another  its  fugitives  from  justice,  with  a  corresponding 
duty  on  the  part  of  the  asylum  State. 

This  duty  to  deliver  fugitives  is  to  be  derived  as  a  practical 
matter  from  treaty,^  and  extends  only  to  offences  specifically 
named  therein.  The  United  States  have  various  treaties  with 
foreign  nations  on  this  subject.  These  treaties,  however,  having 
been  made  at  various  times  and  under  differing  circumstances, 
show  no  uniformity  either  in  the  crimes  named  or  in  the  rules 
governing  extradition.  The  offences  most  commonly  provided 
for  are  murder,  robbery,  forgery  (including  counterfeiting  of 
money),  arson,  and  embezzlement  of  public  moneys  in  various 
forms.*  In  a  considerable  number  of  treaties,  political  offences 
are  expressly  excluded.^  Citizens  of  the  asylum  State  are  not 
to  be  delivered  in  quite  a  number  of  instances.^  In  each  case 
of  extradition  reference  must  be  made  to  the  particular  treaty 
under  which  it  is  demanded. 

Important  questions  of  a  judicial  nature  have  been  presented 
to  the  courts  in  reference  to  this  form  of  extradition.  A  leading 
one  is  whether,  if  a  person  be  extradited  under  a  treaty,  he  can 
be  tried  for  any  other  offence  than  that  for  which  an  application 

1  Matter  of  Washburn,  4  Johns.  Ch.  fonnrl  in  the  "Analytical  Index"  to  the 
106.  government  publication  entitled  "  Treaties 

2  See  English  cases  cited  in  Matter  of  and  Conventions  concluded  between  the 
"Washburn,  swp-a,  p.  Ill;  also  Adriance  y.  United  States  and  other  Powers,  etc." 
Lagrave,  59  N.  Y.  110.  (1889)  pp.  1413-1416. 

3  United  States  v.  Rauscher,  119  U.  S.  ^  Treaties  and  Conventions,  supra, 
407.  p.  141.'). 

*  A  very  useful  classification  may  be  **  Id. 


THE   EIGHTS    OF    PERSONS.  Ill 

for  his  extradition  was  made.  To  determine  this  question  resort 
must  be  had  to  the  treaty  and  the  laws  of  Congress  bearing  upon 
it.  Even  though  the  crime  may  have  been  committed  against 
the  law  of  a  State,  the  extradition  must  be  negotiated  through 
the  Federal  government,  and  not  by  that  of  a  State.  ^  A  treaty 
is  in  this  country  the  supreme  law  of  the  land,  as  distinguished 
from  a  contract  between  the  nations  that  enter  into  it.^  Where 
treaties  regulate  the  mutual  rights  of  citizens  and  subjects  of 
the  contracting  parties,  and  these  rights  are  of  a  nature  to  be 
enforced  in  a  court  of  justice,  the  treaty  will  be  resorted  to  for 
a  rule  of  decision  of  the  case  before  it,  in  the  same  manner  as  a 
statute  might  be.  The  solution  of  the  question  under  discussion 
is  simply  one  of  the  reasonable  construction  or  interpretation  of 
a  particular  treaty,  and  the  laws  made  to  carry  it  more  fully  into 
effect. 

A  case  in  which  the  application  of  this  rule  was  made  has 
been  recently  decided  by  the  Supreme  Court  of  the  United 
States.  It  arose  under  the  treaty  of  1842  with  Great  Britain.^ 
The  court  referred  to  the  caption  of  the  treaty,  which  pro- 
vides for  the  giving  up  of  criminals,  fugitives  from  justice,  in 
"certain  cases."'*  These  cases  are  specifically  enumerated, 
viz.,  murder,  piracy,  etc.,  seven  crimes  in  all.  It  further 
refers  to  the  fact  that  a  requisition  could  only  be  made  for  one 
of  the  enumerated  crimes,  and  that  it  must  be  shown,  on  an 
examination  before  a  proper  tribunal,  that  the  fugitive  was  de- 
manded for  such  a  crime,  and  that  the  examining  magistrate 
must  be  satisfied  by  such  evidence  as  the  law  of  the  State  of  the 
asylum  requires,  of  his  guilt.  The  result  is,  that  there  is  no 
reason  to  doubt  that  the  fair  purpose  of  the  treaty  is,  that  the 
prisoner  shall  be  delivered  up  to  be  tried  for  that  offence  and 
no  other.^  The  words  of  two  sections  of  the  Revised  Statutes  ^ 
were  also  referred  to  as  enough  of  themselves  to  "  set  the  point 
at  rest."  It  was  declared  that  the  obvious  meaning  of  these 
sections  is,  in  reference  to  all  treaties  of  extradition  made  hy  the 
United  States^  that  the  party  shall  not  be  delivered  up  by  the 
United  States  government  to  be  tried  for  any  other  offence  than 
that  charged  in  the  extradition  proceedings,  and  that  when 
brought  into  this  country  on  extradition  proceedings  he  shall  not 

1  United  States  y.  Rauscher,  119  U.  S.  *  These  words,  in  "certain  cases,"  on 
407  ;  People  v.  Curtis,  50  N.  Y.  321.  which  the  court  laid  much  stress,  are,  sin- 

2  Foster  v.  Neilson,  2  Pet.  253,  314  ;  gularly  enough,  wholly  omitted  in  the 
Head-Money  Cases,  112  U.  S.  580,  598,  publication  of  1S89. 

599.  5  United  States  v.  Rauscher,  119  U.  S. 

8  Treaties    and    Conventions     (1889),     422-424. 
p.  437  (Art.  X.).  6  u.  s.  Rev.  St.,  §§  5272  and  5275. 


112  THE   LAW   OF   PERSONS. 

be  arrested  or  tried  for  any  other  offence  than  that  Avith  which 
he  was  charged  in  those  proceedings,  until  he  shall  have  had  a 
reasonable  time  to  return  unmolested  to  the  country  from  which 
he  was  brought.  These  sections  were  declared  to  be  binding  on 
the  judiciary.^ 

If  any  State  court  takes  a  different  view  of  this  question,  its 
decision  will  be  subject  to  review  in  the  United  States  court  by 
a  writ  of  error,  or  a  writ  of  habeas  corpus  from  a  Federal  judge 
or  a  Federal  court  may  be  resorted  to  on  behalf  of  the  prisoner.  2 
The  rights  of  persons,  extradited  under  a  treaty,  can  in  accord- 
ance with  this  decision  be  fully  enforced  by  the  judicial  branch 
of  the  United  States  government. ^  A  recent  English  case  treats 
this  decision  as  final  in  reference  to  American  law.* 

The  principle  announced  in  the  foregoing  decision  cannot  be 
made  available  unless  the  prisoner  is  brought  here  under  the 
provisions  of  a  treaty.  Accordingly,  if  he  were  taken  by  mere 
lawless  violence  from  an  asylum  country,  and  brought  into  one 
of  the  States  of  the  Union,  he  could  be  tried  there  for  his  crime, 
if  the  law  of  that  State  did  not  forbid.  There  would  in  such 
circumstances  be  no  question  of  "extradition,"  and  the  United 
States  court  would  have  no  jurisdiction.^  As  a  further  question 
of  construction,  reference  may  be  made  to  such  words  in  a  treaty 
as  a  crime  "  committed  within  the  jurisdictioyi  of  either  "  nation.^ 
Some  nations  by  statute  make  it  criminal  for  their  own  subjects 
to  commit  certain  acts  within  a  foreign  country.  It  has  been 
held  judicially  that  the  offence  was  committed  "  within  the  juris- 
diction "  of  the  demanding  State,  though  beyond  its  own  territo- 
ries. The  reason  of  this  view  is,  that  a  State  or  nation  is 
supposed  to  have  jurisdiction  over  its  own  citizens  or  subjects 
wherever  they  may  be.' 

Another  question  has  arisen  involving  the  meaning  of  the 
term    "crime,"    as    applied   to   enumerated    offences,    such    as 

1  People  V.  Ranscher,  119  U.  S.  423,  *  Inre  Woodall,  57  L.  J.  (M.  C.)  72. 
424,  referring  to   United  States  v.  Cald-  ^  Ker  y.  Illinois,  119  U.  S.  436. 

well,    8   Blatch.    131  ;    United   States   v.  6  Treaty  with   Great  I-^ritain  of  1842, 

Lawrence,  13  Blatch.  295  ;  and  Adriance  v.  Art.  X. 

Lagrave,  59  IS".  Y.  110,  with  disapproval;  "^  In   re   Stnpp,   11  Blatch.  124.     An 

and  with  approval   to  Commonwealth  v.  opposing  opinion  by  the  Attorney-General 

Hawes,  13  Bush  (Ky. ),  697  ;  Blandford  v.  is  to  be  found  in  a  note  to  this  case.     The 

State,  10  Tex.  App.  627,  and  State -y.  Van-  English  court  holds  that  if  one,  being  in 

derpool,  39  Ohio  St.  273.  England,  sets  in  motion  causes  which  cul- 

2  Ex  parte  Ko3'all,  117  U.  S.  241,  251.  minate  in  a  crime  out  of  England,  he  may 
^  The  court,  in  support  of  its  views,  re-  be  extradited,  since  he  is  found  in  Eng- 

fen'ed  to  diplomatic  discussions,  articles  in  land.  It  is  not  necessary  that  he  should 
law  magazines,  and  treatises  of  repute,  have/cc?.  Queen  v.  Nillins,  53  L.  J. 
119  U.  S.  415,  417.  (M.  C.)  157. 


THE   RIGHTS   OF   PERSONS.  113 

forgery,  for  example,  in  the  treaty  between  the  United  States 
and  England,  The  word  "forgery"  had  in  the  common  law  a 
settled  meaning.  Statutory  crimes  have  been  created  in  a  num- 
ber of  the  American  States  giving  to  newly  described  offences 
the  name  "forgery."  The  question  then  is  whether  the  treaty 
word  "forgery"  includes  these  cases.  The  English  courts  con- 
tend that  it  does  not,  and  that  there  can  be  no  extradition  for 
that  class  of  offences.^  On  a  similar  principle,  the  words  "crime 
or  offence,"  in  a  treaty  with  China,  were  limited  in  meaning  so 
as  to  include  only  such  ordinary  crimes  and  offences  as  are 
generally  punishable  under  the  laws  of  civilized  nations,  and  not 
to  extend  to  such  as  are  peculiar  to  the  law  of  China. ^ 

The  meaning  of  such  a  word  as  forgery  might  present  itself 
in  another  aspect.  It  might,  for  example,  be  found  in  a  treaty 
with  Mexico.  That  country  makes  the  Roman  law  the  basis  of 
its  jurisprudence,  and  the  Supreme  Court  has  held  that  the  com- 
mon law  of  England  can  scarcely  be  said  to  be  the  only  criterion 
by  which  to  construe  the  language  of  a  treaty  with  Mexico.^ 

The  mode  of  obtaining  by  means  of  extradition  the  pos- 
session of  one  charged  with  a  treaty  crime  is  pointed  out  by 
supplementary  legislation  carrying  out  into  details  the  treaty 
provision.^  The  treaty  and  the  statute  are  to  be  read  together 
to  obtain  a  full  view  of  the  proceedings.  The  leading  section 
of  the  Revised  Statutes  is  §  5270,  which  provides  that  "when- 
ever there  is  a  treaty  or  convention  for  extradition  between 
the  government  of  the  United  States  and  any  foreign  gov- 
ernment, any  justice  of  the  Supreme  Court,  circuit  judge, 
district  judge,  commissioner,  authorized  so  to  do  by  any  of  the 
courts  of  the  United  States,  or  judge  of  a  court  of  record  of 
general  jurisdiction  of  any  State,  may,  upon  complaint  made 
under  oath,  charging  any  person  found  within  the  limits  of 
any  State,  district,  or  territory,  with  having  committed  within 
the  jurisdiction  of  any  such  foreign  government  any  of  the 
crimes  provided  for  by  such  treaty  or  convention,  issue  his 
warrant  for  the  apprehension  of  the  person  so  charged,  that  he 
may  be  brought  before  such  justice,  judge,  or  commissioner,  to 
the  end  that  the  evidence  of  criminality  may  be  heard  and  con- 
sidered. If  on  such  hearing  he  deems  the  evidence  sufficient  to 
sustain  the  charge  under  the  provisions  of  the  proper  treaty  or 

1  Li  re  Windsor,  6  B.  &  S.  522  ;  Re         3  Benson  v.  McMahon,  127  TJ.  S.  457, 

Twiman,  5  B.  &  S.  645  ;  s.  c.  9  Cox,  C.  C.  466. 
522.  4  The  English  act  is   33  &   34   Vict. 

^  Attorney-General     v.     Kwok-a-Sing,  c.    52,  termed   the    "Extradition  Act  of 

L.  R.  5  P.   C.   179;  s.  c.  12  Cox,   C.  C.  1870."     In  this  country,  see  U.  S.  Rev. 

565.  St.,  §§  5270-5276. 


1X4  THE   LAW   OF  PERSONS. 

convention,  lie  shall  certify  the  same,  together  with  a  copy  of 
all  the  testimony  taken  before  him,  to  the  Secretary  of  State, 
that  a  Avarrant  may  issue,  upon  the  requisition  of  the  proper 
authorities  of  such  foreign  government,  for  the  surrender  of 
such  person  according  to  the  stipulations  of  the  treaty  or  con- 
vention, and  he  shall  issue  his  warrant  for  the  commitment  of 
the  person  so  charged  to  the  proper  jail,  there  to  remain  until 
such  surrender  shall  be  made." 

The  following  are  the  requisites  to  be  observed. 

(a)  There  must  be  a  complaint  on  oath  stating  the  facts 
necessary  to  constitute  the  alleged  crime.  It  is  not  necessary 
that  there  should  be  a  demand  or  requisition  made  in  the  outset 
by  the  foreign  government.  The  initiative  provided  by  the 
statute  will  suffice,  ^  though  the  treaty  provide  for  requisitions. 
In  the  case  cited,  the  complaint  was  made  by  the  consul-general 
of  the  country  (Mexico)  where  the  crime  was  committed. 

(b)  There  must  be  a  warrant  by  the  commissioner  or  other 
officer  for  the  apprehension  of  the  alleged  criminal,  so  that  evi- 
dence of  his  criminality  may  be  judicially  heard  and  considered. 

(c)  Treaties  provide  that  the  prisoner  shail  only  be  delivered 
up  when  the  fact  of  the  commission  of  the  crime  shall  be  so 
established  that  the  laws  of  the  country  in  which  the  person 
is  found  would  justify  his  apprehension  ^  and  commitment  for 
trial  if  the  crime  had  been  there  committed.  The  proceed- 
ing before  the  commissioner  closely  resembles  that  which 
constantly  takes  place  in  criminal  law,  when  a  preliminary 
examination  is  held  before  an  examining  magistrate  for  the 
purpose  of  determining  whether  a  prisoner  ought  to  be  held 
for  trial.  The  commissioner  does  not  try  the  prisoner.  His 
sole  function  is  to  determine  whether  he  is  to  be  tried  in  the 
foreign  country.  If  he  holds  the  evidence  to  be  sufficient  to  sus- 
tain the  charge,  he  so  certifies  to  the  Secretary  of  State,  at  the 
same  time  transmitting  a  copy  of  all  the  testimony. 

{d)  The  commissioner  thereupon  issues  his  warrant  for  the  com- 
mitment of  the  person  charged  to  jail,  there  to  remain  until  sur- 
render is  made,  which  must  be  within  a  time  prescribed  by  law.'^ 

The  regularity  of  all  the  proceedings  may  be  determined  upon 

1  Benson  v.  McMahon,  127  U.  S.  457,  so  by  the  treat)'.    Castro  v.  Be  Uriarte,  16 

460.     It,   however,  appeared  by  the  cor-  Fed.  R.  93. 

respondence  between  the  foreign  govern-  ^  This  word  in  the  English  Extradition 

ment    and   its    officers   that   it   was   the  Act,  §  8,  has  been  construed  liberally,  and 

purpose  of  the  foreign  government  to  have  includes  detention  of  one  already  in  cus- 

the  prisoner  tried  for  his  offence.     But  a  tody,  though  originally  arrested  without 

preliminary    mandate   from    the    foreign  warrant.    Eeg.  r.  Weil,  L.  R.  9  Q.  B.  701. 

government  is  not  necessary  unless  made  3  u.  g.  Rey.  St.  §  5273. 


THE  RIGHTS  OF  PERSONS.  115 

a  writ  of  habeas  corpus  issuing  from  a  Federal  court.  ^  The  main 
question  to  be  determined  upon  the  writ  is  whether  the  commis- 
sioner had  jurisdiction  to  hear  and  decide  upon  the  complaint. 
If  so,  the  next  inquiry  will  be  whether  there  was  sufficient  legal 
ground  for  committing  the  prisoner  to  await  the  requisition  of 
the  foreign  authorities.  The  court,  in  a  hearing  upon  the  writ, 
will  not  treat  it  as  a  "writ  of  error,"  and  will  not  look  into 
questions  regarding  the  introduction  of  evidence  in  the  same 
manner  as  on  an  appeal.  ^  From  the  case  cited,  it  appears  that 
there  need  be  no  "  requisition  "  by  the  foreign  government  until 
the  prisoner  has  been  held  for  trial  by  the  commissioner. 

{e)  The  final  requisite  is  the  warrant  surrendering  the  prisoner 
to  the  agent  of  the  demanding  State.  The  warrant  is  issued  by 
the  Secretary  of  State  under  his  hand  and  official  seal.^ 

The  former  mode  of  procedure  is  simplified  by  an  act  of  Con- 
gress passed  Aug.  3,  1882.*  This  act  was  occasioned  by  some 
difficulties  which  had  arisen  concerning  the  introduction  in 
evidence  here  of  depositions  of  witnesses,  warrants  of  magis- 
trates, and  other  papers  taken  in  the  foreign  country.  The 
statutes  of  Congress  had  not  been  framed  with  sufficient  breadth 
or  precision.^  The  existing  law  provides  that  such  depositions, 
etc. ,  or  the  copies  thereof,  shall  be  received  for  all  the  purposes 
of  the  hearing  if  they  shall  be  sufficiently  authenticated  so  as  to 
entitle  them  to  be  received  for  similar  purposes  by  the  tribunals 
of  the  foreign  country  from  which  the  accused  shall  have  escaped. 
The  expression  "for  similar  purposes"  means  for  the  purpose  of 
determining  in  the  foreign  country  whether  an  alleged  fugitive 
should  be  extradited  from  that  country. (a)  Whatever  rule  the 
foreign  country  applies  in  such  matters  in  extradition  cases,  the 
United  States  will  reciprocate.  The  certificate  of  the  principal 
diplomatic  or  consular  officer  of  the  United  States  residing  in 
the  foreign  country,  will  be  proof  that  the  documents  already 
referred  to,  or  copies  of  them,  are  authenticated  as  required  by 
this  act.^ 

1  The  writ  was  obtained  from  the  Cir-  *  Chap.  378,  Laws  of  1882,  22  U.  S. 
cuit  Court  of  the  United  States  in  the  case     Stats,  at  Large,  215. 

of  Benson  v.  McMahon,    and   an  appeal  5  The  law  before  1882  is  collated  and 

from  its  decision  was  taken  to  the  Supreme  lucidly   explained   in   the   case   of  In  re 

Court.     127  U.  S.  458,  459.  Fowler,  18  Blatch.  430  (1880). 

2  Id.  461,  462.  6  Reference  may  be  made,   for  further 

3  U.  S.  Rev.  St.  §  5272.  information    on    the   general  subject,    to 


(a)  The  words  "for  similar  purposes,"  prescribed  are  not  admissible  in  evidence 

in  the  Act  of  August  3,  1882,  mean  "as  on  the  hearing  on  the  part  of  the  accused, 

evidence  of  criminality,"  and  depositions  In  re  Luis  Oteiza   y  Cortes,   136  U.   S. 

or  other  papers  authenticated  in  the  manner  330. 


116  THE      LAW    OF    PERSONS. 

The  writ  de  homine  replegiando  existed  at  common  law,  though 
it  has  now  fallen  into  disuse.  Its  peculiarity  was,  that  it  raised 
a  question  which  could  be  tried  by  a  jury,  while  the  questions 
arising  upon  a  writ  of  habeas  corpus  are  to  be  disposed  of  by  a 
court  or  judge.  The  framers  of  the  New  York  Revised  Statutes 
attempted  to  adapt  this  writ  to  the  trial  of  the  question  whether 
a  person  claimed  to  be  a  fugitive  slave  was  so  in  fact.  The 
statute  was  held  by  the  State  court  to  be  unconstitutional,  as 
contrary  to  the  United  States  Constitution  and  the  legisla- 
tion of  Congress  upon  the  subject  of  fugitive  slaves.  ^  There 
is  nothing  at  present  in  the  way  of  reviving  this  writ  by  legisla- 
tion, so  far  as  its  revival  would  not  interfere  with  constitutional 
provisions. 

The  writ  of  ne  exeat  is  a  writ  which  operates  as  a  restraint 
upon  personal  liberty,  and  prevents  a  person  from  withdrawing 
from  the  limits  of  the  State  unless  he  gives  sufficient  security  to 
abide  the  order  of  the  court.  It  is  a  remedy  in  equity  juris- 
prudence. It  can  only  be  granted  when  the  court  would  have  a 
right  to  enforce  its  decree  against  the  person,  and  commit  him 
for  contempt  if  the  order  were  disobeyed.  It  is  a  discretionary 
writ,  and  granted  with  much  caution.  The  theory  of  it  is  that 
the  decrees  of  an  equity  court  are,  as  a  rule,  only  enforceable 
against  the  person,  and  a  defendant  by  withdrawing  from  the 
State  might  practically  render  the  decree  of  the  court  ineffec- 
tual. There  was  a  great  difference  of  professional  opinion  upon 
the  point  whether  this  writ  had  been  abolished  in  New  York 
by  statute,  until  the  subject  was  settled  by  the  Code  of  Civil 
Procedure.^  Technicall}^  speaking,  the  ivrit  is  abolished.  The 
substance  of  it,  however,  remains  in  later  sections,  whereby  the 
same  relief  can  now  be  obtained  by  order  which  formerly  could 
be  had  by  the  ivrit. 

The  subject  of  Personal  Liberty  may  be  closed  with  a  brief 
reference  to  the  right  of  religious  worship  and  to  freedom  of 
speech  and  of  the  press.     The  first  of  these  may  be  regarded  as 

Clarke  on  Extradition,  Spear  on  Extradi-  matter  of  fixct,  the  question  whether  the 

tion,  Wheaton's  International  Law  by  Law-  person  was  a  slave,  instead  of  ascertaining 

rence,    Wheaton's    International    Law   bj'  whether     there    was    sufficient    apparent 

Dana,  Hnrd  on  Habeas  Corpus,  etc.     The  ground  for  the  claim  that  he  was  one,  in 

work  of  Mr.  'Spear  received  high  commen-  order   to   return    liim    to  the  State  from 

dation    from    the  Supreme   Court   of  the  which  he  was  alleged  to  have  fled,  where 

United  States,  in  the  case   of  People   ■;;.  the  question  of  his  freedom  would  properly 

Rauscher,  119  U.  S.  p.  417.  be  tried. 

1  Jack  V.  Martin,  12  Wend.   311,  324  ;  2  §  543^   Collins  v.  Collins,  80  N.  Y. 

on  appeal,  14  Wend.  507.    The  difficulty  24.     See  also  §§  550,  551. 
was  that  the  writ  was  framed  to  try,  as  a 


THE   EIGHTS   OF   PERSONS.  117 

a  right  in  the  United  States.  The  First  Amendment  to  the 
United  States  Constitution  provides  that  Congress  shall  make 
no  law  respecting  an  establishment  of  religion,  or  proldhiting  the 
free  exercUe  thereof.  A  similar  clause  is  found  in  State  consti- 
tutions. The  language  of  the  New  York  constitution  is  that 
"the  free  exercise  and  enjoyment  of  religious  profession  and 
worship  without  discrimination  or  preference  shall  forever  be 
allowed  in  this  State  to  all  mankind."  ^ 

It  was  not  the  object  of  the  provision  in  the  United  States  Con- 
stitution to  allow  the  plea  of  religious  liberty  to  be  used  as  a 
cloak  for  the  violation  of  law  and  good  order.  The  right  of 
governmental  interference  commences  "  when  principles  break 
out  into  overt  acts,  against  peace  and  good  order."  ^  This  doc- 
trine was  applied  to  the  case  of  polygamous  marriages  in  the 
Territory  of  Utah,  contrary  to  §  5352  of  the  Revised  Statutes  of 
the  United  States.^  The  court,  having  held  this  law  constitutional, 
further  said  :  "  So  here,  as  a  law  of  the  organization  of  society 
under  the  exclusive  dominion  of  the  United  States,  it  is  provided 
that  plural  marriages  shall  not  be  allowed.  Can  a  man  excuse 
his  practices  to  the  contrary  because  of  his  religious  belief  ?  To 
permit  this  would  be  to  make  the  professed  doctrines  of  religious 
belief  superior  to  the  law  of  the  land,  and  in  fact  to  permit  every 
citizen  to  become  a  law  unto  himself.  Government  could  exist 
only  in  name  under  such  circumstances."  * 

The  people  of  the  United  States  are  to  be  congratulated  that 
the  Supreme  Court  so  successfully  drew  the  line  between  a  false 
belief  which  is  to  be  tolerated  and  the  acts  dictated  by  the  belief 
and  derived  from  it,  which  may  properly  be  prohibited  and  punished 
by  society. 

Like  views  must  be  entertained  of  liberty  of  speech  and  of  the 
press,  secured  by  the  First  Amendment  to  the  United  States  Con- 
stitution. This  fairly  includes  all  modes  of  communicating  thought 
by  oral  words,  or  by  writing,  or  printing,  or  other  signs.  Still,  the 
liberty  thus  conceded  is  subject  to  the  qualification  that  it  must 
not  be  used  to  encourage  practices  dangerous  to  the  welfare  or 
safety  of  the  State.  This  view  is  enforced  by  provisions  of  the 
Penal  Code  of  New  Yoi-k,  which  prohibit  the  sale  or  loan  of  inde- 

1  Constitution   of    the   State   of  New  ^  Preamble  to   a  Virginia  statute,  12 

York,  Art.    I.    §    3.      There   is   a   useful  Heuing's  Stat.  84. 

qualification  to  that  clause  in  the  consti-  *  Reynolds  v.   United  States,  98  U.  S. 

tution :    "  But  the    liberty   of  conscience  145. 

hereby  secured  shall  not  be  so  construed  *  Reynolds  v.  United  States,  supra,  p. 

as  to  excuse  acts  of  licentiousness,  or  jus-  166. 
tify  practices,  inconsistent  with  the  peace 
or  safety  of  this  State. " 


118  THE   LAW   OF   PERSONS. 

cent  or  immoral  books  or  pictures,  or  the  conveying  of  oral  infor- 
mation as  to  the  means  of  obtaining  any  indecent  article  or 
thing.  ^ 

A  like  result  is  accomplished  in  an  indirect  manner  by  statutes 
of  Congress  prohibiting  the  carrying  of  indecent  matter  in  the 
mails,  and  punishing  any  one  who  knowingly  deposits  it  in  the 
post-office  to  be  carried  by  mail.^  (a)  The  ground  of  this  legislation 
is  that  Congress  has  exclusive  control  over  mail-matter  and  may 
in  the  exercise  of  this  power  exclude  such  matter  from  the  mail.^ 
This  would  be  the  only  ground  for  its  legislation  as  to  the  States, 
though  in  such  places  as  the  District  of  Columbia  and  the  Terri- 
tories, where  it  has  exclusive  power  of  legislation,  it  might  be 
rested  on  the  general  ground  of  the  public  welfare  and  safety. 
The  Supreme  Court  of  the  United  States  *  in  upholding  this  legis- 
lation, subjected  it  to  the  qualifications  that  sealed  letters  and 
packages  could  as  a  rule  only  be  opened  and  examined  under 
warrant  issued  upon  oath  or  affirmation,^  and  that  freedom  of  the 
press  could  not  be  interfered  with  hy  Congress  by  limiting  the 
circulation  of  newspapers  in  any  other  ivay  than  by  excluding 
them  from  the  mail.  State  legislation  may  accordingly  be  called 
into  requisition  for  this  purpose  so  far  as  it  does  not  infringe  upon 
the  State  constitution. 

1  Penal  Code,  §  317,  as  amended  by  418  ;  United  States  v.  Kelly,  3  Sawy.  C. 
ch.  380  of  the  Laws  of  1884,  and  ch.  692  Ct.  566  ;  Ex  parte  Jackson,  96  U.  S.  727. 
of  the  Laws  of  1887.  •»  Ex  parte  Jackson,  supra. 

2  U.  S.  Rev.  St.  §  3893.  5  As  prescribed  by  the  Fourth  Amend- 
8  United  States  v.    Bott,    11    Blatch.     ment. 

346;  United  States  v.  Foote,  13  Blatch. 


(a)  See  also  Laws  of  1888,  ch.  1039  ;  25  Stats,  at  Large,  496. 


CHAPTER  IV. 

CITIZENS   AND   ALIENS. 

This  subject  will  be  treated  under  two  general  divisions, — 
citizens  and  aliens. 

DIVISION  I.  — Citizens. 

The  term  "  citizen "  is  used  in  the  common  law,  and  has  a 
definite  meaning  attributed  to  it  by  writers  on  political  science. 
One  of  the  earliest  works  having  a  marked  influence  upon  English 
ideas  is  that  of  the  French  writer,  Bodin,  on  the  Republic,  in  six 
books,  first  published  in  1576.  This  was  translated  into  English 
by  Richard  Knolles,  and  published  in  London  in  1606.  The  sixth 
chapter  of  the  first  book  treats  of  citizens  and  how  they  differ 
from  strangers.  He  defines  a  citizen  to  be  a  free  subject  holding 
of  the  sovereignty  of  another  man.  He  argues  from  this  defi- 
nition that  a  slave  is  no  citizen  nor  is  a  stranger  coming  into 
another  seigniory.  Some  citizens  are  natural ;  others  are  natural- 
ized.i  Of  natural  citizens,  some  are  free-born,  some  are  slaves. 
Such  slaves  being  set  at  liberty  instantly  become  citizens.  The 
naturalized  citizen  is  he  who  hath  submitted  himself  to  the 
sovereignty  of  another,  and  is  so  received  into  the  number  of 
citizens.  There  are  thus  three  modes  of  becoming  a  citizen, — 
free  birth,  naturalization,  and  enfranchisement.  Accordingly, 
he  continues,  we  must  agree  with  Plutarch,  that  they  are  to 
be  called  citizens  that  enjoy  the  right  and  privileges  of  a  city  (or 
state).  This  is  to  be  understood  according  to  the  condition  and 
quality  of  every  one :  the  nobles  as  nobles ;  the  commoners  as 
commoners  ;  the  women  and  children  in  like  case  according  to 
the  age,  sex,  condition,  and  deserts  of  every  one  of  them.^  Using 
the  same  laws,  magistrates,  and  customs  are  the  true  marks  of  a 
true  citizen.^  He  then  discourses  concerning  the  "  immunities 
and  privileges  "  "^  of  a  citizen.  He  makes  a  remark  which  has 
a  singular  sound  when  applied   to  the  United  States,  viz.,  that 

1  Page  48.    (References  are  to  KnoUes's         ^  Page  54. 

Ed.,  1606. )  *  Page  59.     This  is  a  phrase  found  in 

2  Page  53,  the  United  States  Constitution. 


120  THE   LAW   OF   PERSONS. 

in  a  popular  state,  where  every  citizen  is  in  a  manner  partaker  of 
the  majesty  of  the  state,  they  do  not  easily  admit  strangers  unto 
the  freedom  of  citizens.^  lie  affirms  the  perpetuity  of  citizenship. 
He  says,  "  It  hath  and  shall  be  always  lawful  to  all  princes  by 
the  right  of  their  majesty  and  power  to  keep  their  citizens  at 
home."  "^  Accordingly,  the  freedom  of  a  citizen  is  not  lost  nor  the 
power  of  a  prince  over  his  subject,  by  changing  of  the  place  or 
country.  He  cites  a  decree  of  the  parliament  of  Paris  made 
June  14,  1554,  which  adjudged  that  a  Frenchman  having  dwelt 
fifty  years  in  Venice,  continued  still  subject  to  the  French  king, 
and  was  received  into  the  succession  of  his  next  kinsmen.^  He  is 
however  of  opinion  that  if  a  Frenchman  go  to  Spain  to  live  and 
renounce  his  allegiance  to  France,  and  there  have  a  son  born, 
this  son  is  not  a  Frenchman,  without  naturalization.^  He  sums 
up  by  saying  that  it  is  the  acknowledgment  and  obedience  of  the 
free  subject  towards  his  sovereign  prince  and  the  "  tuition  "  (pro- 
tection), justice,  and  defence  of  the  prince  toward  the  subject, 
which  maketh  the  citizen.  This  is  the  essential  difference  of  a 
citizen  from  a  stranger,  —  as  for  other  differences,  they  are  casual 
and  accidental.  He  finally  proceeds  to  say  that  the  subject  where- 
soever he  be  is  bound  to  the  laws  of  his  prince,  ..."  for  the 
power  to  tie  and  bind  a  subject  is  not  tied  unto  places." 

These  words  are  not  specifically  common  law,  but  they  are  the 
summary  of  the  ripe  conclusions  of  a  leader  of  political  thought, 
at  the  time  when  the  common  law  was  in  a  state  of  formation. 
They  express  the  views  of  continental  Europe  as  to  the  nature 
and  scope  of  allegiance,  and  the  meaning  of  citizenship  as  the  out- 
come of  the  same  feudal  and  governmental  principles  as  were 
recognized  at  the  time  in  England, 

The  correct  theory  of  allegiance,  by  the  rules  of  the  common 
law,  was  greatly  discussed  in  Calvin's  Case.^  The  case  grew  out 
of  the  union  of  the  crowns  of  England  and  Scotland  on  the  ac- 
cession of  James  I.  to  tlie  English  throne.  Calvin  was  born  after 
this  union,  in  Scotland,  and  the  question  was  whether  he  was  a 
natural-born  citizen  of  England.  Such  a  person  was  called  a 
postnatus.  All  those  born  before  the  union  were  termed  antenati. 
It  was  conceded  that  such  persons  born  in  Scotland  were  aliens 
in  England.  It  was  held  that  the  postnati  were  citizens,  on  the 
ground  that  the  test  was  allegiance,  and  where  persons  in  two 
countries  owed  allegiance  to  the  same  king,  they  were  each  his 

^  Page  60.  with  his  former  view  that  no  one  can  di- 

2  lb.  vest  himself  of  his  allegiance  without  his 

3  Page  63.  sovereign's  consent. 

*  lb.      This  seems  to  be  inconsistent         ^  Coke's  Rep.  (Ft.  7)  p.  1. 


CITIZENS   AND   ALIENS.  121 

subjects  and  he  owed  them  protection.  "  Allegiance  is  not  tied 
down  to  places."  ^  The  Scotchman  (postnatus)  could  therefore 
freely  acquire  land  in  England,  though  Scotland  had  then  a 
different  parliament  and  was  governed  by  different  laws.  The 
theory  of  Calvin's  Case  was  that  allegiance  was  a  personal  tie  be- 
tween the  king  and  subject,  and  that  the  king  w^as  not  for  this 
purpose  to  be  regarded  in  his  political  capacity  only.^  In  a 
republic,  the  allegiance  must  necessarily  exist  only  between  the 
nation  or  state  and  the  individual. 

A  different  question  will  arise  when  two  nations  once  under 
the  same  allegiance  are  separated,  or  a  part  of  a  state's  territory 
is  severed  from  it ;  as  the  town  of  Calais  in  France  was  separated 
from  England  in  Queen  Mary's  time,  or  the  American  colonies 
from  England.  A  similar  question  will  arise  as  to  those  who  are 
citizens  before  the  separation,  and  those  who  are  born  afterw^ards 
in  the  respective  countries  {antenati  and  postnati).  All  of  those 
who  were  previously  citizens  have  an  election  to  determine  to 
which  country  they  will  belong.  If  they  adopt  one,  they  become 
aliens  as  to  the  other. 

In  applying  this  principle  to  the  American  colonies,  a  difference 
of  opinion  developed  itself  between  the  English  and  the  American 
courts.  The  English  courts  fixed  upon  the  date  of  the  treaty  of 
peace  in  1783,  as  the  day  for  final  separation ;  the  American 
courts  adopted  the  date  of  the  Declaration  of  Independence  in 
1776.  By  the  American  theory  an  Englishman  who  came  to  the 
United  States  to  reside  after  July  4,  1776,  was  an  alien. ^  All  the 
English  or  Americans  in  this  country  when  the  war  broke  out 
might  elect  to  become  either  citizens  of  England  or  of  America,* 
but  not  of  both  countries.^  A  person  might  lose  the  right  of 
election  by  remaining  in  the  new  state  or  country  for  a  time  while 
it  was  in  a  condition  to  extend  to  him  that  protection  which  the 
doctrine  of  allegiance  implies,  as  for  example,  where  he  remained 
until  1777.^  The  court,  however,  refused  to  apply  this  last  doc- 
trine to  one  who  remained  in  New  York  until  a  short  time  before 
the  evacuation  by  the  British  in  November,  1783,  the  colony  being 
all  that  time  under  the  control  of  the  British^ 

These  rules  will  not  affect  vested  rights  acquired  before  the 
separation.^  A  revolution  in  government  does  not  of  itself  de- 
stroy vested  rights  of  property.     They  must  be  confiscated  by  law. 

1  Bodin,  p.  63.  6  M'llvaine  v.  Coxe's  Lessee,  4  Crancli, 

2  Calvin's  Case,  p.  10  a.  209,  211. 

3  Jackson  v.  Wright,  4  Johns.  75.  '  Inglis  v.  Trustees   of  Sailor's   Snug 
*  Jackson   v.   White,    20  Johns.    313,  Harbor,  3  Pet.  99,  124. 

322.  8  Kelly  v.  Harrison,  2  Johns.  Gas.  29, 

s  Orser  v.  Hoag,  3  Hill,  79.  31. 


122  THE   LAW   OF   PERSONS. 

The  right  to  make  a  subsequent  acquisition  of  real  property  will 
depend  upon  the  allegiance  due  at  the  time  of  the  acquisition. 
These  matters  may  be  regulated  by  treaty,  as,  for  example,  the 
treaty  between  the  United  States  and  England  in  1794.1 

By  local  allegiance,  an  expression  borrowed  from  the  common 
law,  is  meant  the  duty  of  any  person  temporarily  in  a  country  to 
submit  himself  for  the  time  being  to  the  law  of  the  place  where 
he  may  happen  to  be.  When  he  withdraws  from  the  country, 
if  he  is  not  a  citizen,  local  allegiance  is  at  an  end. 

There  has  been  some  question  made  of  late  years  as  to  the 
liability  of  one  who,  not  being  in  a  given  State  or  country,  sets  in 
motion  a  cause  which  results  in  a  breach  of  law  and  perhaps  a 
crime  in  such  State.  The  view  of  the  New  York  Court  of  Appeals  ^ 
was  that  the  general  doctrine  of  allegiance  was  not  sufficiently 
comprehensive  to  meet  the  exigencies  of  such  a  case,  but  that  the 
stranger  coming  into  the  State  might  be  prosecuted  there  on  the 
ground  that  the  act  committed  was  an  offence  against  the  higher 
law  of  nature  which  the  State  should  punish  in  order  to  protect 
its  own  citizens. 

The  correct  application  of  this  principle  was  greatly  discussed 
in  a  famous  English  case  known  as  the  Franconia  case.^  The 
case  involved  the  question  whether  the  English  courts  could 
try  and  punish  Keyn,  in  command  of  the  German  ship,  the 
Franconia,  which  being  on  a  sea  voyage  ran  into  a  British  ship 
through  negligence,  two  and  a  half  miles  from  the  beach  of  Dover, 
England,  and  caused  the  death  of  a  passenger.  The  element  of 
locality  entered  into  the  case,  as  a  German  commander  could  not 
be  tried  in  an  English  court  for  manslaughter,  committed  on  the 
high  seas  more  than  three  miles  from  land.  The  question,  how- 
ever, remained  wliether  he  was  liable  if  the  act  were  committed 
ivitliin  three  miles  of  the  shore.  The  appellate  court,  consisting 
of  thirteen  judges,  while  conceding  that  by  the  common  law  the 
ordinary  criminal  courts  had  no  jurisdiction  beyond  low-water 
mark,  except  in  the  case  of  land-locked  waters,  such  as  harbors, 
etc.,  decided  by  a  narrow  majority  (seven  to  six)  that  the  ad- 
miralty criminal  jurisdiction  extended  over  the  high  seas  from 
low-water  mark  seaward  over  all  persons  on  hoard  British  ships 
and  no  others.  The  six  judges  in  the  minority  were  of  the 
opinion  that  the  admiralty  criminal  jurisdiction  extended  over 
all  persons  in  any  and  all  ships  within  a  marine  league  of  the 
coast.     The  result  of  the  decision  was  that  no  British  court  has 

1  Munro  v.  Merchant,  26  Barb.  383  ;  3  Regina  v.  Keyn,  L.  E.  2  Exch.  Div. 
(on  appeal)  28  N.  Y.  9.                                      63-239. 

2  Adams  v.  The  People,  1  N.  Y.  173. 


CITIZENS   AND   ALIEXS.  123 

any  jurisdiction  whatever  over  a  crime  committed  by  a  foreigner 
on  board  a  foreign  ship  on  the  high  sea,  even  though  within  three 
miles  of  the  British  coast. ^ 

Another  question  of  importance  is,  liow  far  a  foreign  ship  of 
war  is  liable  to  our  jurisdiction,  while  in  one  of  our  harbors. 
Some  jurists  maintain  the  theory  of  "  ex-territoriality,"  which 
is  an  assertion  that  the  doctrine  of  local  alles-iance  cannot  be 
applied.  They  maintain  that  a  ship  of  war  resembles  a  floating 
island,  and  that  when  in  a  foreign  port,  the  law  of  the  port  does 
not  attach  to  it.  This  is  asserted  to  be  a  rule  of  international 
law.  On  the  other  hand,  it  is  maintained  with  equal  positive- 
ness  by  others,  that  every  nation  has  absolute  and  exclusive 
sovereignty  within  its  own  limits,  including  its  own  ports  and 
harbors,  and  that  by  consequence  all  restrictions  upon  its  full 
power  must  be  derived  from  the  consent  of  the  nation  itself.^ 
The  question  took  on  a  highly  practical  shape  in  a  case  where  a 
fugitive  slave  sought  refuge  on  an  English  ship  of  war  lying  in  a 
port  where  slavery  existed,  and  the  question  was  whether  the 
commander  was  bound  to  deliver  him  to  the  local  authorities.  On 
this  point,  the  opinion  of  the  English  jurists  who  were  consulted 
was  greatly  divided,  and  the  point  remains  undetermined.^  The 
weight  of  argument  would  seem  to  be  with  those  who  contend 
that  the  principle  of  "  ex-territoriality  "  is  at  least  not  to  be  pressed 
so  far  as  to  excuse  citizens  or  subjects  from  obedience  to  their 
own  local  law. 

There  is  one  further  question  to  be  noticed  here.  This  is, 
whether  a  foreigner  committing  an  offence  against  the  local  law 
of  the  State  where  he  may  be,  can  relieve  himself  from  liability 
to  prosecution  by  pleading  the  command  of  the  State  to  which 
he  belongs,  and  thus  raise  the  question  to  the  rank  of  an  inter- 
national inquiry.    This  question  was  fully  considered  by  a  New 


^  The  opinions  in  Ref^ina  v.  Kej'n  were  used  in  this  statute  is  defined  to  mean  any 

of  great  length,  occupying  176  octavo  pages  act,  neglect,  or  default  which,  if  committed 

of  the  report.     The  controversy  led  to  the  within  the  body  of  a  county  in  England, 

statute  of  41  &  42  Vict.  c.  73,  187S,  called  would  at  the  time  be  punishable  by   an 

"  The  Territorial  Waters  Jurisd iction  Act. "  indictment.   This  comprehensive  definition 

This  statute  declares  that  the  jurisdiction  seems   to   make  it  useful  for  all  persons 

of  England  over  offences  extends  over  the  sailing    within    a   marine    league    of   the 

opensea  within  a  marine  league  of  the  coast,  British  coast  to  be  acquainted  with  the 

over   foreigners  on  foreign  ships  or   over  whole  body  of  the  English  criminal  law. 

offences   committed  by  means  of  foreign  2  xhe  Schooner  Exchange  v.  M'Faddon, 

ships;   but  no  proceedings  of  a  criminal  7  Cranch,  116,  136. 

nature  against  such  a  foreigner  are  to  be  ^  gpe  a  Re])ort  of  a  Roj'al  Commission 

instituted  without  the  consent  of  a  secre-  on  Fugitive  Slaves,  referred  to  in  2  Ste- 

tary  of  state  and  a  certificate  that  he  deems  phen's  Hist,  of  the  Criminal  Law  of  Eng- 

them  expedient.     The  word  "  ofl'ence  "  as  laud,  p.  44. 


124  ■  THE   LA.W   OF   PEKSONS. 

York  court  in  the  case  of  an  Englishman  who,  while  a  rebellion 
existed  in  Canada,  had,  as  was  claimed,  unlawfully  killed  an 
American  citizen  within  the  jurisdiction  of  New  York.  It  was 
held  by  the  State  court  that  he  was  liable  to  prosecution  for  the 
alleged  crime  though  his  act  was  avowed  and  adopted  by  Great 
Britain.^ 

It  is  quite  plain  that  this  theory  under  our  complex  system  of 
government  might  enable  a  single  State  through  the  action  of  its 
criminal  courts  to  involve  the  entire  nation  in  a  war  with  a 
foreign  power.  Accordingly,  with  a  view  of  avoiding  all  danger. 
Congress  has  passed  a  statute  requiring  notice  in  any  such  case 
to  be  served  on  the  attorney-general  of  the  United  States  of  any 
writ  of  habeas  corpus  which  may  be  applied  for  in  behalf  of  such 
a  person.  An  appeal  may  be  taken  from  the  final  decision  upon 
the  writ  to  the  Circuit  Court  of  the  United  States  for  the  district 
in  which  the  cause  is  heard,  and  thence  to  the  Supreme  Court  of 
the  United  States.^ 

The  merits  of  this  question  were  not  settled  by  the  case  of 
People  V.  McLeod,  since  the  prisoner  when  tried  proved  an  alibi 
and  was  acquitted.  The  correct  doctrine  seems  to  be  that  the 
adoption  by  the  gov-ernment  of  the  act  of  one  of  its  citizens 
makes  such  act,  by  a  species  of  ratification,  a  governmental 
one,  and  brings  the  whole  subject  within  the  domain  of  inter- 
national law.  The  act,  if  wrongful,  thus  becomes  a  national 
wrong.  It  may  be  a  cause  of  war ;  it  cannot  properly  be  treated 
as  a  crime.  It  has  been  decided  in  a  number  of  English  cases 
that  an  individual  acting  in  this  manner  is  not  under  any  civil 
responsibility.^  It  would  seem  still  more  plain  that  he  would  not 
be  criminally  liable  to  the  foreign  State  or  to  any  component 
part  of  it.  If  the  act  be  a  wrong,  it  is  one  for  which  a  municipal 
court  of  justice  cannot  afford  a  remedy,  and  by  parity  of  reason 
ing  cannot  punish.* 

1  People  V.  McLeod,  25  Wend.  482.  mitted  abroad.  This  statement  is  well 
The  correspondence  between  the  English  illustrated  by  the  "  Foreign  Jurisdiction  " 
and  American  authorities  may  be  found  in  Acts  in  England,  6  &  7  Vict.  c.  94  ;  29  & 
a  note  at  page  487.  See  also  People  v.  Mc-  30  Id.  c.  87  ;  35  &  36  Id.  c.  19,  as  amended 
Leod,  1  Hill,  377.  by  38  &  39  Id.  c.  51,  §  6,  and  c.  85.     The 

2  See  U.  S.  Rev.  St.  §§  762-766.  sixth  section  of  chapter  51  of  the  statutes 

3  Buron  v.  Denman,  2  Exch.  167  ;  Sec-  of  1875  (38  &  39  Vict.)  is  particularly 
retary  of  State  v.  Kamachee,  &c.  13  Moore,  noticeable.  It  authorizes  "  Her  Majesty  to 
P.  C.  C.  22,  86.  exercise   power  and  jurisdiction  over  her 

*  There  are  some  good  remarks  upon  subjects  within  any  islands  and  places  in 

this  point  in  2  Stephen's  Hist,  of  the  Crimi-  the  Pacific  Ocean   not  being  witliin  Her 

nal  Law  of  England,  pp.  61-65.     There  is  Majesty's  dominions  nor  within  the  juris- 

a  growing  tendency  in  Europe  to  legislate  diction  of  nny  civilized  power,  in  the  same 

upon  the  wrongful  acts  of  citizens  com-  and  as  ample  manner  as  if  such  power  or 


CITIZENS   AND   ALIENS.  125 

Section  I,  The  Acquisition  of  Citizenship.  (1)  Bi/  Birth.  — • 
Citizens  are  either  natural-born  or  naturalized.  One  who  is  born 
in  the  United  States  or  under  its  jurisdiction  is  a  natural-born 
citizen  without  reference  to  the  nationality  of  his  parents.  Their 
presence  here  constitutes  a  temporary  allegiance,  sufficient  to 
make  a  child  a  citizen.^ 

A  difficult  question  exists  in  the  common  law  as  to  the  citizen- 
ship of  a  child  of  Euglish  parents,  born  abroad.  The  New  York 
Court  of  Appeals  has  decided  that  such  a  person  was  a  citizen  on 
the  ground  that  the  duty  of  allegiance  passed  by  descent,  the 
child  following  the  condition  of  the  father,  and  that  the  question 
in  this  country  is  to  be  determined  by  the  common  law  as  it 
existed  at  the  time  of  the  adoption  of  the  United  States  Con- 
stitution.^ Sir  Francis  Bacon,  in  the  great  case  of  the  antenati 
already  referred  to,  was  a  strong  advocate  of  this  opinion  and 
accepted  all  its  consequences.  He  said,  "  If  a  man  shall  look 
narrowly  into  this  point  he  shall  find  a  consequence  that  may 
seem  at  the  first  strange,  but  cannot  well  be  avoided,  whicli  is, 
that  divers  families  of  English  men  and  women  plant  themselves 
at  Rouen  or  at  Lisbon  and  have  issue,  and  their  descendants  do 
intermarry  among  themselves  without  any  intermixture  of  foreign 
blood,  such  descendants  are  naturalized  to  all  generations,  for 
every  generation  is  still  of  liege  parents  and  therefore  natural- 
ized, so  as  you  may  have  whole  tribes  and  lineages  of  English  in 
foreign  countries."  ^  Sir  Francis  Bacon's  deduction  will  not  now 
readily  be  accepted  as  law.  The  opposing  theory  that  persons 
born  abroad  of  American  parents  are  aliens,  unless  there  is  a 
naturalizing  statute  in  their  aid,  is  powerfully  sustained  by  a  dis- 
tinguished jurist,  the  late  Horace  Binney.'*  His  proposition  may 
be  briefly  summed  up  thus  :  birth  here  confers  citizenship  ;  birth 
abroad  causes  alienage.  On  this  view  the  citizenship  of  the  parents 
is  of  no  consequence.  Citizenship  assumes  a  territorial  character. 
The  sole  inquiry  is  who  had  the  sovereignty  over  the  territory 
where  the  child  was  born  at  the  time  of  its  birth  ? 

jurisdiction  had  been  acquired  by  the  ces-  times  or  places.     These  statutory  powers 

siou   or  conquest  of  territory,"  etc.     The  are  directed  to  be  carried  into  effect,  by 

later  statute  of  41  &  42  Vict.  c.  67  (1878)  the  orders  of  the  Queen  in  Council.     Such 

gives  jurisdiction  over  British  subjects  in  orders   have   already   been    issued,    being 

a?i?/ vessel  witliin  one  hundred  miles  of  the  framed  with   great   comprehensiveness  as 

coast  of  China  or  Japan,  without  reference  well  as  precision  of  detail.     See  38  &  39 

to  the  fact  whether  the  ship  is  British.  Vict.  c.  51,  §  6. 

This  is  a  clear  assertion  of  the  right  of  Par-  ^  Lynch  v.  Clarke,  1  Sandf.  Ch.  583. 

liament  to  exercise  jurisdiction  over  British  2  Ludlam  v.  Ludlam,  26  N.  Y.  356. 

subjectsas  to  criminal  acts  no  matter  where  ^  Hargrave's  State  Trials,  81. 

committed,  and  an  implied  affirmance  of  *  2  Am.  Law  Reg.  193.     "The  Alien- 

the  view  that  the  allegiance  of  a  subject  is  igence  of  the  United  States." 
a  personal  tie  having  no  dependence  on 


126  THE  LAW   OF   PERSONS. 

Mr,  Binney's  article  has  been  said  to  have  led  to  the  enact- 
ment of  a  statute  by  Congress,  Feb.  10,  1855.  This  law  is  now  a 
section  of  the  Revised  Statutes  of  the  United  States.^  The  sub- 
stance of  it  is  that  all  children  born  out  of  the  limits  and  juris- 
diction of  the  United  States  whose  fathers  were  citizens  thereof 
at  the  time  of  their  birth,  are  citizens  of  the  United  States,  but 
the  rights  of  citizenship  shall  not  descend  to  children  whose 
fathers  never  resided  in  the  United  States.^  If  Mr.  Binney's 
views  in  the  article  referred  to  are  correct,  this  statute  created 
a  new  class  of  citizens ;  if  not,  then  it  took  away  the  rights  of 
citizenship  from  a  large  number  of  persons,  —  children  of  Amer- 
ican fathers  who  never  resided  in  the  United  States.  The  first 
sentence  of  the  Fourteenth  Article  of  the  Amendments  to  the 
United  States  Constitution  should  be  noticed.  This  is,  that  "  all 
persons  born  or  naturalized  in  the  United  States  and  subject  to 
the  jurisdiction  thereof  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside."  It  may  be  thought  that  there  is 
an  implication  in  this  statement  that  no  other  persons  can  be 
citizens  except  such  as  are  born  or  naturalized  here.  The  more 
correct  view  would  seem  to  be  that  a  constitutional  provision  of 
this  kind  is  not  intended  to  abridge  existing  rights,  but  rather  to 
confirm  such  as  are  specified.  In  that  view,  the  controversy  con- 
cerning natural-born  citizens  remains  unaffected  except  by  §  1993 
of  the  Revised  Statutes,  (a) 

(2)  By  Naturalization.  —  The  whole  subject  of  naturalization 
is  vested  in  Congress  by  the  United  States  Constitution.  Its  lan- 
guage is,  "  Congress  shall  have  power  to  establish  an  uniform 
rule  of  naturalization."  ^  It  is  judicially  decided  that  the  word 
"  uniform  "  makes  the  power  exclusive  in  Congress,  and  that  the 
States  have  no  power  to  naturalize  citizens.^ 

In  carrying  out  this  power  Congress  has  conferred  the  right 
not  only  upon  United  States  tribunals,  but  also  upon  State  courts 
to  act  as  the  means  of  naturalizing.^  This  power  is  conferred 
upon  a  court  of  any  of  the  States,  having  common-law  jurisdiction, 
a  seal,  and  a  clerk.  The  State  courts  are  not  bound  to  exercise 
jurisdiction  in  such  cases,  but  may  do  so  if  they  will ;  when  they  act, 
they  for  this  purpose  perform  a  judicial  function  for  the  United 

1  §  1993.  3  Art.  I.  §  8,  cl.  4. 

2  This  language  is  qualified  by  §  2172,  *  Chirac  v.  Chirac,  2  Wheat.  259,  269  ; 
which  provides  that  the  children  of  per-  Thurlow  v.  Massachusetts,  5  How.  U.  S. 
sons  who  noio  are  or  have  been  citizens  of  504,  585. 

the  United  States,  shall,  though  born  out  of         5  u.  s.  Rev.  St.  §  2165. 
the  limits  and  jurisdiction  of  the  United 
States,  be  considered  citizens  thereof. 


(a)  See  ante,  p.  72,  note  (a). 


CITIZENS   AND   ALIENS.  127 

States.  Only  the  court  can  naturalize ;  the  clerk  cannot  do  so.^ 
The  court  renders  a  judgment  which  is  entered  in  the  usual 
manner  on  the  records.  When  once  entered  all  inquiry  is 
closed  ;  like  other  judgments  it  is  complete  evidence  of  its  own 
validity.^ 

The  following  requirements  apply  to  naturalization  :  ^  _ 

First.  Declaration  of  Intention.^ The  alien  must  make  a 
declaration  before  the  proper  court  two  years  prior  to  his  admis- 
sion to  citizenship,  that  it  is  his  intention  in  good  faith  to  become 
a  citizen,  and  to  renounce  all  allegiance  to  foreign  states  or  sover- 
eignties, and  particularly  by  name  to  that  state  of  which  he  is 
at  the  time  a  citizen  or  subject.  This  preliminary  declaration  is 
not  required  from  the  following  classes  of  persons  :  (1)  From  ap- 
plicants who  are  minor  residents  of  this  country  for  three  years 
next  preceding  tlieir  majority,  though  they  cannot  be  naturalized 
unless  they  have  resided  five  years  within  the  United  States 
including  the  three  years  of  minority ;  (2)  aliens  of  full  age  who 
have  enlisted  in  the  army  (whether  regular  or  volunteer  forces) 
and  been  honorably  discharged ;  (3)  aliens  in  the  country  prior  to 
June  18,  1812.  This  last  provision  has  practically  become  obso- 
lete from  lapse  of  time. 

The  "  declaration  of  intention  "  may  be  made  before  the  clerk 
of  the  court  as  well  as  the  court  itself. 

Second.  Admission  to  Citizenship.  —  It  is  a  rule  that  an  alien 
cannot  be  admitted  as  a  citizen  unless  he  has  resided  in  the 
United  States  five  years  at  least  preceding  his  admission,  and 
within  the  State  or  Territory  where  naturalized  one  year  at  least. 
The  fact  of  residence  must  be  proved  by  other  evidence  than  the 
applicant's  own  oath.  There  are  two  exceptions  to  the  require- 
ment of  five  years'  residence.  One  is,  when  the  applicant  has 
enlisted  in  the  army  and  been  honorably  discharged,  in  which 
case  the  time  is  reduced  to  one  year  ;  the  other  exception  is  in 
the  case  of  seamen  in  the  merchant  service,  who  may  be  admitted 
within  three  years  after  their  declaration  of  intention. 

There  is  a  special  rule  applicable  to  declarants  who  die  before 
they  are  actually  naturalized.  In  such  a  case  the  widows  and 
children  are  considered  as  citizens  on  taking  the  oaths  prescribed 
by  law.* 

An  applicant  must  also  make  it  appear  that  he  is  a  man  of 

1  Matter  of  Clark,  18  Barb.  444.  sidered  in  Matter  of  Coleman,  15  Blatch. 

2  Spratt  V.  Spratt,  4  Pet.  393;  Mc-  406.  Where  there  is  no  record,  oral  evi- 
Carthy  v.  Marsh,  5  N.  Y.  263 ;  Ritchie  v.  dence  of  naturalization  is  inadmissible. 
Putnam,  13  Wend.  524  ;  In  re  McCappin,  Dryden  v.  Swinburne,  20  W.  Va.  89. 

5  Sawy.  C.  Ct.  630.     The  elements  neces-  8  u.  g.  Rev.  St.  §§  216.5-2174. 

sary  to  a  record  of  naturalization  are  con-  *  U.  S.  Rev.  St.  §  2168. 


128  THE   LAW   OF   PEKSONS. 

good  moral  character  and  attached  to  the  principles  of  the  Con- 
stitution of  the  United  States.  He  must  also  renounce  any  title 
of  nobility  which  he  may  have.  Naturalization  of  a  husband 
includes  that  of  the  wife  and  minor  children.  Marriage  of  an 
alien  woman  (if  she  belongs  to  the  class  or  race  entitled  to  be 
naturalized)  to  a  citizen  constitutes  her  a  citizen.^  A  court  can- 
not make  naturalization  retroactive.^  An  alien  will  not  be  pre- 
sumed to  be  a  citizen  by  residence  within  this  country  for  any 
time  no  matter  how  long.^  Congress  may  also  naturalize  by  a 
general  statute,  as  in  the  case  of  citizens  of  Texas,  who  were 
made  citizens  of  the  United  States  by  virtue  of  the  collective 
naturalization  effected  by  the  act  of  Annexation  of  Dec.  29, 1845.* 

Section  II.  Special  Rules  as  to  Citizenship  under  the  United 
States  Constitution.  —  The  object  of  this  subdivision  is  to  bring 
together  the  rules  growing  out  of  the  following  clauses  in  the 
Constitution :  "  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  States  ;"^  and 
also  the  first  part  of  the  second  sentence  of  Article  Fourteenth  of 
of  the  Amendments,  "  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States."  These  two  clauses,  many  years  apart  in  point  of 
time,  should  be  considered  separately. 

(1)  The  Pi'ovision  in  Art.  IV.  of  the  Cotistitution.  —  This  clause 
refers  to  "  privileges  and  immunities  "  which  are  fundamental, 
which  belong  of  right  to  the  citizens  of  all  free  governments,  and 
which  have  been  at  all  times  enjoyed  by  the  citizens  of  the  several 
States.  It  does  not,  for  example,  require  a  State  to  permit  the 
citizens  of  other  States  to  share  in  its  fisheries  which  are  the 
property  of  the  State.^  No  privileges  are  secured  except  those 
which  belong  to  citizenship.''  The  Supreme  Court  is  not  disposed 
to  lay  down  any  general  formula  upon  this  subject,  but  to  leave 
the  meaning  of  the  words  to  be  determined  in  each  case  upon 
a  view  of  the  rights  asserted  or  denied  in  the  litigation.^ 

Some  of  the  instances  in  which  this  clause  has  been  applied 
will  now  be  adverted  to.  A  State  cannot  withhold  from  a  citizen 
of  another  State  a  license  to  sell  goods  which  it  grants  to  its  own 
citizens.^     The  same  rule  would  be  applied  to  similar  discrimina- 

1  U.S.  Rev.  St.'§  1994;  Kelly  v.  Owen,  ^  McCready  o.  Virginia,  94  U.  S.  391  ; 
7  "Wall.  496 ;  14  Opinions  of  Attys-Gen'l,  Corfuld  v.  Coryell,  4  Wash.  C.  Ct.  371. 
402.  7  Conner   i'.  Elliott,    18   How.    U.   S. 

2  Dryden  v.  Swinburne,  20  W.  Va.  89.  591. 

8  Hawenstein  v.  Lynham,  100  U.S.  483.  8  McCready  v.  Virginia,  94  U.  S.  391, 

*  Citizenship,    13   Opinions  of  Attys-  395  ;  Conner  v.  Elliott,  stipra,  593. 
Gen'l,  397.  9  Bliss'  Petition,  63  N.  H.  135  ;  State  v. 

6  Art.  IV.  §  2,  cl.  1.  Lancaster,  Id.  267. 


CITIZENS   AND   ALIENS.  129 

tions  in  a  revenue  law.^  If  a  license  to  sell  be  required,  but  no 
distinction  is  made  between  residents  and  non-residents,  the  law 
will  be  constitutional.^  (a)  Again,  it  is  not  an  interference  with 
the  equal  rights  of  citizens  to  require  persons  practising  medicine 
to  obtain  a  certificate  from  the  State  Board  of  Health.^  (5) 

The  test  in  all  this  class  of  cases  is  the  presence  or  absence 
of  discriminations  in  the  regulations  unfavorable  to  citizens  of 
another  State.  The  decisions  turning  upon  this  point  are  quite 
numerous  and  uniform  in  upholding  the  rights  of  citizens  of  other 
Statcs.4 

Licenses  required  by  a  State  of  citizens  of  another  State  as  a 
prerequisite  to  pursuing  a  commercial  avocation  in  the  legislating 
State  will  be  unconstitutional  as  an  unauthorized  interference  with 
interstate  commerce.  (<?)  This  rule  has  been  applied  in  a  number 
of  cases  in  favor  of  commercial  drummers.^  In  the  case  last  cited 
in  the  note,  the  principle  was  extended  to  an  act  passed  by  the 
so  called  "  Legislative  Assembly  of  the  District  of  Columbia  " 
(which  is  but  a  municipal  body  created  by  Congress),  though 
strictly  speaking  there  was  no  commerce  between  States  within 
the  tvords  of  the  Constitution. 

Distinctions  are  made  in  some  State  statutes  between  the  right 
of  residents  and  non-residents  to  bring  actions  in  the  State  courts. 
An  instance  of  this  kind  occurred  in  a  recent  New  York  case,  in 
which  it  was  held  that  the  statute  was  not  unconstitutional.^  ((i) 

1  Ward  V.   Maryland,    12   Wall.   418  ;  stitutional   rule  was   declared   not   to   be 

Olivers.  Washington  Mills,  11  Allen,  2<dS  ;  violated   is  Kimniish  v.  Ball,   129  U.   S. 

Kash  V.  Halloway,  82  Ky.  674.  217,  222. 

'-^  State  V.  Long,  95  jS".  C.  582.  8  Robbins    v.   Shelby  Taxing  District, 

8  State  V.  Dent,  25  W.  Va.  1.  120  U.  S.  489  ;  Asher  v.  Texas,  123  U.  S. 

*  Paul  V.  Virginia,   8  Wall.   168  ;  The  129;   Stoutenburgh  v.  Hennick,  129  U.  S. 

John  M.  Welch,  18  Blatch.  54  ;  State  v.  141. 

Furbush,  72  Me.  493  ;  State  v.  McGinnis,  6  Eobinson  v.  Oceanic  Steam  Nav.  Co., 

37  Ark.  362  ;  McGuire  v.  Parker,  32  La.  112  N".  Y.  315  ;  construing  §  1780  N.  Y. 

An.  832.    A  recent  case  in  which  the  con-  Code  of  Civil  Procedure. 


(fl)  A  liquor  license  law  providing  that  Minnesota  v.    Barber,  Id.   313.     See  also 

the  vender  must  be  a  male  inhabitant  of  Maine  v.  Grand  Trunk  R3\  Co.,  142  U.  S. 

the  State  is  not  in  conflict  with  this  clause  217  ;  Horn  Silver  Jlining  Co.  v.  New  York 

of  the  Constitution  of  the  United  States.  State,  143  U.  S.  305  ;  Ficklen  v.  Shelby 

Welsh  V.  The  State,  126  Ind.  71.    See  also  Co.  Taxing  District,  145  U.  S.    1  ;  People 

Trageser  v.  Gray,  73  Md.  250.  v.  Wemple,  29  Abb.  N.  C.  85.     Discrimi- 

(/')  Craig  V.  Board  of  Med.  Examiners,  nations  made  against  non-residents  of  cer- 

29  Pac.  R.  532.  tain  counties  of  a  State  are  not  necessarily 

(c)  The  general  subject  is  discussed  in  invalid.     Rothermel  v.   Meyerle,  136   Pa. 

the  following  cases  :  American  Fertilizing  St.  250. 

Co.  V.  Board  of  Agriculture,  43  Fed.  R.  (d)  See  Robey  v.  Smith,  30  N.  E.  Rep. 
609  ;  Leisy  v.  Hardin,  135  U.  S.  100  ;  1093  ;  Shirk  v.  City  of  La  Fayette,  52 
McCall  V.  California,  136  U.  S.  104;  Fed.  R.  857,  holding  that  a  statute  pro- 
Norfolk  R.  R.  V.  Pennsylvania,  Id.  114;  hibiting  the  appointment  of  a  non-resident 

9  . 


130  THE   LAW   OF   PEKSONS. 

(2)  The  ProJiihition  in  Fourteenth  Amendment.  —  This  Amend- 
ment grew  out  of  the  civil  war,  and  its  provisions  regarding  citi- 
zenship were  designed  to  provide  suitable  rules  for  the  protection 
of  the  emancipated  race.  The  Supreme  Court  has  said  that  the 
pervading  purpose  found  in  all  the  recent  Amendments  and  with- 
out which  none  of  them  would  have  been  suggested,  was  "  the 
freedom  of  the  slave  race,  the  security  and  firm  establishment  of 
that  freedom,  and  the  protection  of  the  newly-made  freeman  and 
citizen  from  the  oppressions  of  those  who  had  formerly  exercised 
unlimited  dominion  over  him."  ^  The  negro  by  means  of  them 
became  a  citizen  of  the  State  and  of  the  United  States,  The 
Amendment  is  predicated  upon  supposed  State  laws  or  State  pro- 
ceedings opposed  to  it,  and  is  directed  to  the  correction  of  their 
operation  and  effect.^  The  Amendment  does  not  refer  to  the 
wrongful  acts  of  individuals  unsupported  by  State  authority,  in 
the  shape  of  laws  or  executive  or  judicial  proceedings.  It  was  the 
denial  of  rights  for  which  the  States  as  such  alone  could  be  respon- 
sible which  was  the  great  and  fundamental  wrong  intended  to  be 
remedied,^  (a) 

Several  cases  have  arisen  to  which  these  rules  were  applied. 
In  one,  persons  of  color  were  denied  the  accommodations  of  an 
inn  or  hotel ;  in  another,  a  colored  person  was  refused  a  seat  in 
the  dress  circle  of  a  theatre  ;  (J)  in  another,  the  wife  of  a  colored 
person  was  refused  a  seat  in  a  ladies'  car  upon  a  railroad.  The 
court,  holding  that  in  none  of  these  cases  was  there  any  State 
interference  with  the  rights  of  the  individual,  denied  that  the  facts 
brought  any  of  them  within  the  scope  of  the  Amendment.  The 
court  expressly  reserved  the  question  whether,  if  these  acts  had 
been  done  by  a  State,  there  would  have  been  any  abridgment  of 
privileges  and  immunities  of  citizens  by  the  acts  in  question.* 
The  point  on  whicli  the  case  turned  was  that  the  State  by  State 
action  had  denied  no  "  privileges  or  immunities  "  of  United  States 
citizenship. 

This  clause  is  much  broader  in  its  scope  than  that  in  the  Con- 
stitution itself.^    The  latter  only  refers  to  the  case  where  a  State 

1  Slaughter-House  Cases,  16  Wall.  36,  92  U.  S.  542  ;  Virginia  v.  Rives,  100  U.  S. 
71.  313  ;  Ex  parte  Virginia,  Id.  339. 

2  Civil  Rights  Cases,  109  IT.  S.  11,  12.  *  Civil  Rights  Cases,  109  U.  S.  3. 
8  See  also  United  States  v.  Cruikshank,  ^  j^^^.  jy.  §  2. 

as  trustee  in  "  a  deed,  mortgage,  or  other  mon,  and  would   seem  to   be   competent, 

instrument  in  writing,  except   wills,"  is  Baylies  v.  Curry,  128  111.  287  ;  Ferguson 

unconstitutional.  v.  Gies,  82  Mich.  3,58  ;  Donnell  v.  Missis- 

(a)  State  legislation  for  the  protection  sippi,  48  Miss.  661. 
of  citizens  in  their  civil  rights  from  the  {h)  Younger  v.  Judah,  19   S.  W.  Rep. 

wrongful  acts  of  individuals  is  not  uncom-  1109. 


i 


CITIZENS   AND   ALIENS.  131 

interferes  with  the  privileges  or  immunities  of  a  citizen  of  another 
State.  The  Fourteenth  Amendment  embraces  all  citizens  of  the 
United  States  whether  they  be  citizens  of  another  State,  or  of 
that  making  the  law.  In  other  words,  the  privileges  and  immu- 
nities referred  to  are  those  of  every  citizen  of  the  United  States 
without  any  reference  to  State  citizenship. 

The  term  "  citizen "  in  this  clause  does  not  include  a  private 
corporation.^  At  the  same  time  a  corporation  is  a  "  person  " 
under  the  clause  of  this  Amendment  which  prevents  a  State  from 
depriving  a  "person"  of  life,  liberty,  or  property  without  due 
process  of  law.^  The  word  "  citizen  "  is  confined  to  natural,  as 
distinguished  from  artificial  persons,  while  the  word  "  person  " 
includes  both. 

"Citizenship"  must  be  regarded  as  a  condition  or  state,  and 
exists  irrespective  of  age  or  sex.  It  must  not  be  confounded  with 
the  right  to  vote,  which  is  conferred  as  a  rule  upon  only  a  small 
portion  of  the  citizens.  The  Constitution  of  the  United  States 
deals  with  the  elective  franchise,  however,  in  one  highly  impor- 
tant respect.  It  declares  that  the  franchise  shall  not  be  abridged 
by  a  State  on  account  of  race,  color,  or  previous  condition  of  ser- 
vitude.^ This  prevention  of  discrimination  is  a  constitutional  rule, 
though  the  right  of  suffrage  itself  is  not  a  necessary  attribute  of 
national  citizenship.* 

Citizenship  is  important  in  a  judicial  point  of  view  as  deter- 
mining in  certain  cases  the  right  to  bring  actions  or  to  defend 
them  in  the  courts  of  the  United  States  rather  than  of  the  States. 
As  this  is  not  a  question  of  personal  rights,  but  rather  of  the 
choice  of  tribunals  in  which  rights  may  be  vindicated,  it  is  merely 
adverted  to  in  this  connection. 

DIVISION  IL  — Aliens. 

All  persons  not  being  citizens  or  subjects  are  aliens.^  They  are, 
in  general,  subject  to  certain  disabilities.  These  are  either  po- 
litical in  their  nature  (such  as  an  incapacity  to  hold  office  or  to 
vote  at  public  elections)  or  pertain  to  the  acquisition  of  land.  As 
to  the  acquisition  of  personal  property,  or  the  power  to  make  con- 
tracts, no  distinction  is  made  between  citizens  and  aliens,  unless 
the  latter  are  "  alien  enemies." 

1  Pembina  Mining  Co.  v.  Pennsylvania,  ^  jfembers  of  the  Indian  tribes  are  not 
125  TJ.  S.  181.  citizens,  nor  are  they  aliens.    The  tribes  as 

2  Minneapolis  &  St.  Louis  Railway  Co.  such  are  to  be  regarded  as  "  domestic  de- 
V.  Beckwith,  129  II.  S.  26.  pendent  nations,"  and  fall  to  a  certain  ex- 

8  Art.  XV.  of  Amendments.  tent  within  the  class  of  subjects. 

*  United  States  i'.  Reese,  92  U.  S.  214. 


1^2  THE    LAW   OF   PERSONS. 

I.  DisabiUty  to  Acquire  iawc?.  — The  disability  to  acquire  land 
is  one  existing  at  common  law.  Although  it  is  removed  in  some 
of  the  American  States,  it  exists  in  others,  and  should  be  noted 
here.  A  distinction  must  be  taken  between  the  right  to  acquire 
by  purchase  and  by  descent. 

(1)  Acquisition  hij  Purchase.  The  word  "  purchase,"  in  the  law 
of  real  estate,  includes  every  mode  of  acquisition  other  than  de- 
scent. There  are  two  principal  forms  of  purchase,  —  conveyance 
or  deed,  and  will  or  devise. 

An  alien  may  take  land  hy  deed,  and  hold  it  against  the  grantor 
and  his  heirs,  but  not  against  the  State.  If  the  State  does  not 
institute  proceedings  against  him,  he  is  safe.^  Even  an  officer  of 
a  court  holding  the  title  in  trust  cannot  raise  the  question  of  ali- 
enage and  interfere  with  the  title.^  The  State  can  take  the  land 
from  the  alien  by  a  proceeding  called  "  inquest  of  office."  This 
is  an  inquiry  set  in  motion  by  an  executive  officer  before  some 
tribunal  with  a  jury.  There  must  be  a  proceeding  resulting  in  a 
trial  and  a  judgment,  so  that  the  land  of  a  subject  may  not  be 
wrongfully  taken  from  him  under  the  plea  that  he  is  an  alien. 
To  tins  end  there  should  be  the  intervention  of  a  jury.  The 
result  of  the  proceeding  in  favor  of  the  State  is  called  "  office 
found."  An  office  found  for  the  king  in  England  puts  him  in 
immediate  possession  without  the  trouble  of  a  formal  entry .^  In 
New  York,  a  proceeding  analogous  to  an  inquest  of  office  is  insti- 
tuted by  the  attorney-general* 

The  title  of  the  alien  is  thus  defeasible.  This  element  of  de- 
feasibility  passes  with  the  land  though  it  be  conveyed  to  a  citizen, 
on  the  general  doctrine  that  one  can  convey  no  greater  interest 
than  he  possesses.^  These  rules  interfere  with  tlie  collection  of 
debts  by  an  alien  from  the  debtor's  land.  He  cannot  safely  pur- 
chase it  at  a  judicial  sale.  A  citizen  may  purchase  in  such  a 
case,  and  agree  with  the  alien  to  convey  it  as  the  latter  may 
direct.  An  alien  who  has  taken  a  mortgage  cannot  purchase  the 
land  on  a  foreclosure  except  through  the  help  of  a  statute.^ 

The  rights  of  an  alien  to  real  estate  are  affected  by  the  doc- 
trine of  "  equitable  conversion."  It  is  a  rule  of  a  court  of  equity 
that  if  an  owner  of  land  direct  it  to  be  sold  and  converted  into 
money  and  paid  over  to  a  specified  person,  it  shall  be  deemed  to 

1  Jackson  v.  Beach,  1  Johns.  Cas.  title  of  the  alien  may  be  made  good  by  a 
399  ;    Jackson   v.    Lunn,    3   Johns.    Cas.     special  act  of  the  legislature. 

109.  5  The  People  v.  Conklin,  2  Hill,  67,  71. 

2  Matter  of  Leefe,  4  Edw.  Ch.  395.  6  In  New  York  if  he  is  entitled  to  hold 
8  3  Bl.  Com.  259,  260,  where  the  whole     land  and  conveys  it  and  takes  a  mortgage 

subject  is  explained.  for  the  purchase-money,  he  may  re-acquire 

*  Code  of  Civ.  Pro.  §§  1977-1981.    The     it  on  a  foreclosure.     1  R.  S.  721,  §  19. 


CITIZENS   AND   ALIENS.  133 

be  money  for  the  purpose  of  vesting  it  in  the  person  specified. 
The  converse  rule  will  be  applied  in  case  money  be  directed  to 
be  laid  out  in  land.  If  this  rule  were  applied  to  the  case  of  an 
alien,  he  would  be  allowed  to  take  the  proceeds  of  the  sale  of  the 
land  directed  to  be  sold.  It  is  the  direction,  and  not  the  actual 
sale,  which  gives  the  land  the  qualities  of  personal  property.  ^ 
This  principle  does  not  allow  the  alien  to  take  a  trust  in  the  land, 
but  only  to  take  the  proceeds  arising  from  the  sale.^ 

If  money  were  directed  to  be  laid  out  in  land  for  the  alien  he 
would  be  under  the  same  disability  as  he  would  be  under  in 
taking  the  land  itself.^  On  a  similar  principle,  he  would  not,  as 
husband,  be  entitled  to  an  interest  resembling  an  estate  by  the 
curtesy  in  money  which  had  been  directed  by  a  testator  to  be 
laid  out  in  land  for  the  use  of  his  wife ;  nor,  under  like  circum- 
stances, would  an  alien  wife  at  common  law  be  entitled  to  dower.* 

Keference  should  be  made  in  this  connection  to  a  peculiar  stat- 
utory trust  in  New  York  and  some  other  States,  whereby  an 
owner  of  land  may  vest  it  in  a  trustee  to  receive  the  rents  and 
profits,  and  apply  them  to  the  use  of  one  or  more  persons  during 
their  lives  as  the  statute  may  prescribe.^  The  interest  of  the  bene- 
ficiary is  made  inalienable.  At  the  same  time,  the  statute  pro- 
vides that  he  shall  have  no  interest  in  the  land,  but  only  in  the 
income.  Under  such  a  trust,  it  has  been  decided  that  an  alien 
may  lawfully  be  a  beneficiary,  since  by  the  very  terms  of  the 
statute  he  has  no  interest  in  the  land,  but  only  in  the  income 
(which  may  be  assumed  to  be  money)  derived  from  it.^ 

In  the  common  law,  title  by  tvill  or  devise  does  not  differ  from 
that  created  by  a  deed.  In  some  of  the  States,  among  others. 
New  York,  a  devise  to  a  person  who  at  the  testator's  death  is  not 
authorized  to  hold  real  estate,  is  void.'  It  will  be  observed  that 
the  phraseology  is  peculiar.  It  does  not  include  all  aliens,  but 
only  those  who  are  in  existence  at  the  time  of  the  testator's  death. 
Accordingly,  if  a  devise  be  made  to  a  person  not  then  in  being, 
e.g.,  an  unborn  child,  but  who  came  into  being  after  the  testator's 
death,  the  common  law  prevails,  and  the  land  vests  in  the  person 
described  as  it  would  have  done  had  there  been  a  transfer  by  deed.^ 

1  Craig  V.  Le.slie,  3  Wheat.  563  ;  Meak-  5  i  r.  g.  703,  §  55.  In  New  York  no 
inffs  V.  Cromwell,  5  N.  Y.  136  ;  Anstice  v.  more  than  two  lives  can  be  specified  in  the 
Brown,  6  Paige,  448.  instrument  creating  the  trust.    1  K.  S.  723, 

2  Leggett  V.  Dubois,  5  Paige,  114.  §  1.5. 

3  Beekman  v.  Bonsor,  23  N.  Y.  298.  «  Marx   v.   McGlynn,    83    N.    Y.    357, 
*  But   by   the   United    States    Revised     376. 

Statutes  this  principle  will  not  be  applied  "  2  R.  S.  57,  §  4. 

to  an  alien  woman  married  to  a  citizen,  ^  Wadsworth  v.   Wadsworth,  12  N.  Y 

since  by  her  mariiage  she  becomes  a  citi-  376. 

zen.     §  1994. 


134  THE   LAW   OF   PERSONS. 

(2)  Title  hy  Descent.  —  The  alien  acquires  no  title  whatever  by 
descent.  No  inquest  of  office  is  necessary.  The  distinction  be- 
tween this  case  and  that  of  purchase  is,  that  in  the  case  of  pur- 
chase the  land  is  acquired  by  the  alien's  own  act,  while  in  the 
case  of  descent,  the  acquisition  is  made  by  act  of  the  law.  It 
would  be  an  absurdity  if  one  rule  of  law  should  give  the  estate  to 
the  alien,  and  then  another  rule  of  law  should  withdraw  it  from 
him.  Accordingly,  he  takes  nothing  whatever.  The  same  prin- 
cii)le  applies  to  all  legal  estates,  e.  g.,  dower  or  curtesy.  By  force 
of  this  rule  one  citizen  cannot  trace  his  title  to  land  by  descent 
from  another  citizen  through  an  intermediate  alien.  Thus  where 
a  grandfather  being  a  citizen  owns  land  and  dies,  a  grandson  who 
is  also  a  citizen  cannot  inherit  from  the  grandfather  if  the  father 
be  an  alien.  This  rule  does  not  prevent  a  brother  from  inheriting 
from  a  brother,  when  the  father  is  an  alien.  The  reason  of  this  last 
proposition  is  that  inheritances  did  not  ascend  at  the  common  law, 
and  the  brother  did  not  derive  his  brother's  estate  through  the  father, 
though  he  obtained  his  relatiojiship  to  his  brother  in  that  manner.^ 
The  rule  will  also  be  applied  in  favor  of  the  children  of  brothers.^ 

The  rule  that  one  cannot  claim  to  inherit  through  an  alien 
was  modified  in  England,  before  the  American  Revolution,  by  the 
statute  of  11  &  12  Wm.  III.  c.  6,  in  case  the  intermediate  alien 
be  dead  when  the  descent  takes  place.  This  act  is  re-enacted  in 
New  York.^  It  applies  both  to  lineal  and  collateral  relatives. 
The  language  of  the  statute  is  that  "  no  person  capable  of  in- 
heriting shall  be  precluded  from  such  inheritance  by  reason  of 
the  alienism  of  any  ancestor  of  such  person."  ^  The  statute  can- 
not be  applied  in  case  the  alien  ancestor  through  whom  title 
would  regularly  be  derived  is  living,  when  the  owner  of  the  land 
dies.  The  object  of  the  act  was  not  to  abolish  the  principle  that 
no  one  can  be  the  heir  of  a  living  person,  but  to  change  the  tech- 
nical rule  that  every  person  in  the  line  of  descent  must  have  been 
a  citizen,^  Moreover,  the  general  principle  itself  is  not  applicable 
where  a  claimant  as  heir  can  make  out  his  title  independent  of 
and  not  through  an  alien.  Thus,  if  a  man  have  two  sons,  the 
elder  an  alien,  and  the  younger  a  citizen,  the  younger  may  at 
common  law  inherit  from  the  father  the  whole  estate  to  the 
exclusion  of  the  elder  brother.^ 

1  Collingwond  V.  Pace,  1  Sid.  193  ;  1  <  See  McCarthy  v.  Marsh,  5  N.  Y.  263. 
Ventris,  413  ;  Kynnaird  v.  Leslie,  L.  R.  1  ^  McLean  v.   Swanton,  13  N.  Y.  535  ; 
C.  P.  389.     In  this  last  case  the  reason  of  M'Creery  v.  SomeiTille,  9  Wheat.  354. 
the  rule  in  CoUingwood  v.  Pace,  supra,  ^  Jackson  v.  Jackson,   7  Johns.    214; 
is  fully  explained.  Jackson  v.  Green,  7  Wend.  333  ;  2  Bl.  Com. 

2  McGregor  v.  Conistock,  3  N.  Y.  408.  251-255. 

3  1  R.  S.  754,  §  22. 


CITIZENS   AND   ALIENS.  135 

If  an  estate  be  vested  by  deed  in  a  husband  and  wife  jointly 
(tenancy  by  the  entirety)  and  one  be  a  citizen  and  the  other 
an  alien,  if  the  citizen  die  first  the  alien  takes  the  whole  estate, 
not  by  any  descent,  but  as  an  incident  to  the  original  conveyance 
(viz.,  survivorship),  and  the  alien  would  hold  the  tvliole  estate,  sub- 
ject, however,  to  an  inquest  of  office  on  the  part  of  the  State.^ 
This  principle  would  also  seem  to  apply  to  cases  of  joint  tenancy, 
since  the  survivor  takes  the  whole  estate. 

II.  Special  Questions  concernmg  Alienage.  —  There  are  several 
questions  of  a  special  nature  concerning  alienage  which  may  be 
conveniently  considered  at  this  point. 

One  of  these  is  the  effect  of  a  marriage  between  a  female  citizen 
and  an  alien.  Assuming  the  correctness  of  the  common-law  rules 
of  citizenship,  such  a  marriage  cannot  affect  the  status  of  the 
wife.  She  cannot  be  released  from  her  existing  allegiance  ex- 
cept by  the  act  of  the  State  of  which  she  is  a  citizen.  Under 
the  laws  of  Congress  her  children,  if  born  abroad,  will  be  aliens 
unless  their  father  has  become  a  citizen  or  has  at  some  time  re- 
sided within  the  United  States.  It  may  be  urged  in  opposition  to 
this  view  that  she  may  lawfully  "  expatriate"  herself.  This  point 
will  be  considered  hereafter  under  the  topic  of  "  expatriation."  (a) 

The  effect  of  existing  treaties  between  the  United  States  and 
other  countries  upon  alienage  should  also  be  mentioned.  Under 
the  treaty-making  power,  the  President  and  Senate  of  the  United 
States  may  negotiate  treaties  which  will  give  aliens  belonging  to 
the  nation  with  whom  the  treaties  are  made,  the  right  to  hold 
land  in  the  States  and  Territories  of  the  Union,  in  a  manner  dif- 
fering from  that  prescribed  by  the  general  rules  governing  aliens. 
The  treaties  become  the  supreme  law  of  the  land,  and  are  bind- 
ing upon  the  States  in  this  as  well  as  other  respects. 

Various  treaties  have  been  made  with  European  and  South 
American  states,  giving  special  privileges  to  their  citizens  as  to 
holding  and  disposing  of  land  in  this  country.  It  is  not  the 
policy  of  these  treaties  to  stand  in  direct  opposition  to  the  policy 
of  a  State  of  the  Union  as  to  the  disabilities  of  alienage,  but  for 
the  most  part  to  permit  the  heirs  who  are  disqualified  by  alienage 
from  holding  land  to  sell  the  land,  and  withdraw  the  proceeds. 
This  capacity  is  limited  as  to  time.  The  periods  vary.  In  some 
cases  two  or  three  years  are  named  ;  in  others,  a  reasonable 
time;  in  others  still,  the  "  longest  period  allowed  by  law."  It 
is   provided    in    a    large    number   of    treaties    that    succession 

1  Wright  V.  Saddler,  20  N.  Y.  320. 


(a)  See  post,  p.  139. 


136  THE   LAW   OF   PERSONS. 

duties  or  taxes  are  not  to  be  larger  than  those  imposed  upon 


natives 


There  are  certain  special  rules  as  to  aliens  in  the  various  States 
of  the  Union.  The  rule  is  well  settled  that  in  general  the  capacity 
to  hold  land,  or  to  convey  or  to  devise  it,  as  well  as  the  capacity 
of  the  grantee  or  devisee  or  relative  to  take  or  inherit  it,  depends 
on  the  law  of  the  State  where  the  land  is  situated.  This  propo- 
sition must,  as  has  been  stated,  be  qualified  by  a  recognition  of 
the  power  of  Congress  to  give  the  capacity  by  naturalization  or 
by  treaty.  The  States  may  accordingly  adhere  to  the  common 
law,  or  by  statute  or  constitutional  provision  give  more  or  less 
full  capacity  to  aliens  to  take  and  hold  land.  Any  privileges  of 
this  kind  will  be  local  and  territorial  in  their  character,  having 
no  effect  in  any  other  State. 

The  legislation  of  the  States  has  been  very  diverse  upon  this 
subject.  In  a  few  States  the  common  law  still  prevails  without  any 
legislation.^  In  a  large  majority  of  the  States  the  disability  of  alien- 
age has  been  partly,  but  in  general  not  wholly,  removed.  In  some 
of  the  States  the  disability  is  removed  or  modified  as  to  resident 
aliens,  but  continued  as  to  non-residents.  The  details  are  so 
various  that  they  cannot  be  conveniently  brought  within  the 
compass  of  a  note,  but  should  be  sought  in  the  statutes  them- 
selves.^ In  several  of  the  States  the  disability  of  alienage  is 
entirely  removed,  so  that  an  alien  can  take  and  hold  land  as 
freely  as  a  citizen.^ 

1  Reference  may  be  conveniently  made  steps  (b).  If  he  dies  before  naturalization, 
for  details  to  the  "  Analytical  Index  "  of  his  heirs,  if  aliens,  may  succeed  to  his  in- 
"  Treaties  and  Conventions  between  the  terest  by  filing  a  similar  deposition.  There 
United  States  and  other  Powers "  (1889),  is  also  ameliorating  legislation  in  Dela- 
p.  1422.  ware,  Maryland,   Indiana,  Nevada,    Ken- 

2  Notably  Vermont.  tucky,     Oregon,     California,      Michigan, 
^  See  in  New  Hampshire,  Laws  of  1853,     Missouri,  Virginia,  West  Virginia,  Texas, 

ch.    135,    §  1  ;    Stat.    1867,    p.    253.     In  South     Carolina,     Arkansas,     Tennessee, 

Connecticut,  R.    S.   of  1866,   p.   537  {a).  Pennsylvania,  Iowa,  and  Mississippi. 
In  New  York  there  has  been  a   series  of  *  The  States  referred  to  are  Massachu- 

statutes.      A  principal  feature  of  them  is,  setts,  Rhode  Island,  Maine,  New  Jersey, 

that  a  resident  may  file  with  the  Secretary  Ohio,  Illinois,  Minnesota,  Nebraska,  Wis- 

of  State  a  deposition  prescribed  by  law,  of  consin,  Kansas,  Georgia,  Colorado,  Florida, 

his  intention   to   become   a   citizen,    and  and  Louisiana, 
stating  that  he  has  taken  the  preliminary 


(a)  See  New  Hampshire  Public   Stat-  the  State  the  title  of  an  alien  heir  is  good 

utes,  ch.  137,  §g  16,  17,  Connecticut  Gen-  without  making  the  deposition.     Stamin 

eral  Statutes,  §§  15,  16.  v.  Bostwick,  122  N.  Y.  48.     Foreign-boru 

{h)  This  requirement  is  now  necessary  children,     and    their    descendants,    of    a 

only  in  the  case  of  males  of  full  age.     See  woman   born   in   the    United    States   but 

Laws  of  1875,  ch.  38,  amending  ch.  115,  married  to  an  alien  and  residing  abroad. 

Laws  of  1845,  Rev.  St.  (8th  ed. )  pp.  2425,  may  take  and  hold  real  estate  in  the  same 

2426.     As  against  every  claimant  except  manner  as  citizens  of  the  United  States, 


CITIZENS   AND   ALIENS.  137 

There  is  observable  a  reactionary  tendency,  particularly  in  some 
of  the  western  States,  owing-  in  part  to  the  fact  that,  by  their  liberal 
jiolicy,  very  large  properties  have  been  acquired  by  aliens,  who 
are  suspected  of  nut  being  disposed  to  make  use  of  them  in  the 
manner  most  useful  to  the  community  where  the  lands  are  sit- 
uated. This  feeling  found  expression  in  Congress  in  a  law  passed 
in  1887,1  making  it  unlawful  for  aliens,  unless  they  have  declared 
their  intention  to  become  citizens,  to  take  or  hold  real  estate  in 
the  Territories  or  the  District  of  Columbia,  except  so  far  as  it  has 
been  acquired  by  inheritance  or  in  the  ordinary  course  of  justice 
in  the  collection  of  debts  created  before  the  passage  of  the  act. 
This  law  is  not  to  interfere  with  existing  treaties.  Restrictions 
are  also  imposed  upon  the  power  of  foreign  corporations  to  ac- 
quire land,  as  well  as  upon  all  corporations  more  than  twenty 
per  cent,  of  whose  stock  is  owned  by  persons  not  citizens  of  the 
United  States.  There  are  other  restrictions  upon  the  corporate 
power  of  acquisition  of  land  not  necessary  to  be  stated  in  t^ht, 
connection.  This  legislation  is  prospective  in  its  character,  hiom-  > 
ing  no  disturbing  effect  upon  existing  titles.  Violation  of  tihis  ) 
statute  leads  to  forfeiture,  to  be  enforced  by  the  attorney-geneithe  ''| 
of  the  United  States.  'he    ' 

III.  Alien  Enemies.  —  Thus  far  it  has  been  assumed  that  ai 
alien,  whether  under  or  free  from   disability,  is    a  friend.     Ili 
time  of  war  with  the  country  of  which  he  is  a   subject  or  a. 
citizen,  new  questions  will  arise. 

Two  distinct  cases  of  disability  may  exist  in  time  of  war.  One- 
is,  where  a  citizen  of  this  country  is  domiciled  in  the  country 
with  which  the  United  States  are  at  war.  Such  a  person,  though 
not  strictly  an  enemy,  is  to  be  deemed  so  with  reference  to  the 
seizure  of  so  much  of  his  property  concerned  in  the  trade  of  the 
enemy  as  is  connected  with  his  foreign  residence.  This  character, 
gained  by  foreign  residence,  may  be  shaken  off  as  soon  as  he  puts 
himself  in  motion  to  leave  the  foreign  country  with  no  intention 
of  returning  there. ^  Leaving  this  special  case  out  of  view,  an 
alien  enemy  is  subject  to  the  following  disabilities. 

(1)  He  has  no  standmg  in  our  courts.  He  cannot  prosecute 
any  suit  in  the  courts  of  this  country.  He  cannot  sustain  a  claim 
in  a  prize  court.^     There  is  an  exception  to  this  rule  where  the 

1  Ch.  340,  Laws  of  1887.  3  The  Emulous,  1  Gall.  563  ;  Johnson 

2  The  Venus,  8  Cranch,  253.  v.  Thirteen  Bales,  &c.  2  Paine,  639.     He 

provided  the  title  is  derived  througli  such  notwithstanding  the  fact  that  he  is  a  non- 
woman  or  an  ancestor  who  was  a  citizen  of  resident  alien,  if  the  title  is  derived  from 
the  United  States.     Laws  of  1889,  ch.  42.  a  citizen  of  the  United  States.     Laws  of 
By  a  still  later  statute  any  person  may  in-  1893,  ch.  207. 
herit  or  take  real  property  in  Xcw  York, 


138  THE   LAW   OF   PERSONS. 

cause  of  action  arises  out  of  a  trade  licensed  by  the  United  States, 
since  the  right  to  sue  is  an  incident  to  the  right  to  trade  and  to 
contract.^  Such  a  license  may  sometimes  be  presumed,  as,  for 
example,  where  a  merchant  resided  here  before  the  war,  and  con- 
tinued to  do  so  until  the  time  of  the  commencement  of  tlie  action.^ 
An  alien  domiciled  here  before  the  war,  and  continuing  here,  owes 
allegiance,  and,  if  he  gives  "  aid  and  comfort "  to  the  enemy,  is 
liable  to  prosecution  for  treason.^ 

(2)    His  contracts  as  to  the  matter  of  legality.     Two  general 

cases  must  be  considered :  first,  contracts  between  citizens  of  the 

foreign  State,  not  in  aid  of  the  war,  and  afterwards  sought  to  be 

enforced  in  our  courts.     Such  a  contract  is  valid  and  enforceable 

here.    This  rule  was  applied  to  contracts  made  in  the  Confederate 

States  during  the  late  Civil  War.*     If  such  a  contract  had  been 

made  in  aid  of  the  rebellion  it  would  have  been  treated  as  void  by 

yiv  courts.^     The  second  class  includes  contracts  between  citizens 

'^6gi^two  countries  at  war  with  each  other.     Such  a  contract  is  con- 

;  ^o^  ry  to  "  ublic  policy  and  void.    It  will  be  invalid  even  after  peace 

(  of  tgsta]  T  \iQ^^  because  it  is  void  in  its  inception.^ 

/  alicT-  scar  \  contract  were  made  in  time  of  peace,  a  subsequent 

I   "^^^'ai    ^^6  ^     lot  make  it  void  in  its  inception.     The  right  of  action 

CO-  i)^  jpended  during  the  war,  but  will  in  general  revive  after 

SG:  jace       .eclared.     There  may  be  special  cases  in  which  the  con- 

^'^  ract  ir*    issolved.     An   instance  may  be  that  of  a  policy  of  life 

f^'nsurance,  with   payments  of  premiums  to  be  made  at  recurring 

ntervals  during  the  war.     While  the  war  continues,  the  pay- 

founents   must  be  suspended.     A  difference  of  opinion  prevails  as 

to  the  point  whether  this  state  of  things  dissolves  the  contract, 

or  whether  it  revives  in   time  of  peace.     The  Supreme  Court  of 

the  United  States  has  decided  that  the  entire  contract  in  this 

particular  case  is  dissolved,  owing  to  the  peculiar  nature  of  the 

contract  of  life  insurance  when  based  upon  periodical  payments 

by  the  insured.'     The  time  of  payment  is  material  and  of  the 

essence  of  the  contract.^     So  an  agent,  having  authority  before 

may  sue  in  an  admiralty  as  distinguished  ^  Desmare  v.  United  States,  93  U.  S. 

from   a   prize   court.      United    States    v.  605. 

Shares  of  Stock,  5  Blatch.  231.  6  Hart    v.   United    States,    1.5    Ct.    of 

1  Crawford  v.  The  Wm.  Penn,  Pet.  C.  Claims,  414  ;  Craft  v.  United  States,  12 
Ct.  106  ;  Usparicha  v.  Noble,  13  East,  Ct.  of  Claims,  178  ;  Grisvvold  v.  Wadding- 
332.  ton,  16  Johns.  438  ;  Willison  v.  Patteson, 

2  Otteridge  v.  Thompson,  2  Cranch,  C.  7  Taunt.  439  ;  Matthews  v.  McStea,  91 
Ct.  108.  U.  S.  7  ;  Ins.  Co.  v.  Davis,  95  U.  S.  425. 

8  Carlisle  v.  United  States,   16   Wall.  ^  New  York  Life  Ins.  Co.  v.  Statham, 

147.  93  U.  S.  24;  Ins.  Co.  v.   Davis,  95  U.  S. 

*  Wilmington  R.   R.   Co.   v.  King,  91  425. 

r.   S.   3  ;  Lockhart  v.   Horn,    1   Woods,  8  j^ew  York  Life  Ins.  Co.  v.  Statham, 


628. 


Ins.  Co.  V.  Davis,  supra. 


CITIZENS   AND   ALIENS.  139 

the  war  to  collect  debts  in  the  enemy's  country,  may  with  the  con- 
sent of  the  creditor  continue  to  do  so  after  the  war,  so  that  the 
payment  will  be  a  discharge  to  the  debtor ;  but  without  such  con- 
sent the  agency  is  absolutely  tei-minated.^  In  the  case  cited  in 
the  note  it  was  said,  "  that  war  suspends  all  commercial  inter- 
course between  the  citizens  of  two  belligerent  countries  or  States, 
except  so  far  as  may  be  allowed  by  the  sovereign  authority,  has 
been  so  often  asserted  and  explained  in  this  court  within  the  last 
fifteen  years  that  any  further  discussion  of  that  proposition  would 
be  out  of  place."  ^  A  different  view  of  the  rule  governing  life 
insurance  in  such  a  case  has  been  taken  by  the  New  York  Court 
of  Appeals,  where  it  was  decided  that  the  payments  were  only 
suspended  during  the  war,  and  that  the  right  to  make  them,  with 
interest  added,  revived  in  time  of  peace.^ 

It  seems  that  the  lawfulness  of  commercial  intercourse  in  such 
cases  may  depend  on  the  place  of  one's  domicile.  Thus,  one  who 
fled  from  the  Confederate  States  when  the  war  broke  out  might, 
by  an  agent  appointed  before  the  war,  carry  on  ordi  iry  com- 
mercial intercourse  within  the  lines  of  the  enemy,  fg,,ile  this 
would  not  be  true  of  one  who,  being  domiciled  in  ^i^J  the 
loyal  States,  was  at  the  time  living  within  the  F  "  ;  the 
Confederacy.^ 

IV.   The  Right  of  Expatriation.  —  The  right  to  expa.        e  Ok,  i 
self,  and  thus  become  an  alien,  has  been  largely  discuss    o.    If  tl. 
common-law  doctrine  of  allegiance  is  to  be  sustained  there  can  ' 
no  absolute  right  of  this  kind,  nor  can  any  such  right  be  concede, 
by  a  nation  consistently  with  the  power  of  a  society  of  men  to  co, 
tinue  its  national  existence.     A  nation  with  the  absolute  right  (. 
expatriation  once  established,  would  not  be  a  coherent  and  single 
bodv,but  a  mere  aggregation  of  individuals  withoat  any  tie  bindinp 
them  together.    In  time  of  war  it  could  not  resort  to  a  «.c?""''^"'''"-y 
draft,  nor  could  there  be  any  adequate  security  for  the  fulfilment 
of  treaties  or  other  public  engagements.     The  state,  on  its  part, 
might  with  equal  propriety  claim  the  right  to  repudiate  a  citizen 
at  pleasure.     Jurists  and  judicial  tribunals  have  refused  to  recog- 
nize any  absolute  right  of  expatriation,  and  have  declared  that 
the  assent  of  the  nation  is  in  some  form  necessary.     Legislative 
bodies  have  made  declarations  upon  this  subject  of  a  different 
character.     By  the  Revised  Statutes  of  the  United  States,^  it  is 
recited  that  "  whereas  the  right  of  expatriation  is  a  natural  and 

1  Ins.  Co.  V.  Davis,  95  U.  S.  425.  *  Quigley  v.  United  States,   13  Ct.  of 

2  Id.  p.  429.  Claims,  367. 

3  Sands  v.  N.  Y.  Life  Ins.  Co.,  50  N.  Y.  5  §  1999. 
626.     ' 


240  THE   LAW    OF   PERSONS. 

inherent  right  of  all  people,  indispensable  to  the  enjoyment  of  the 
rights  of  lile,  liberty,  and  the  pursuit  of  happiness  ,■  and  whereas 
in*^  the  recognition  of  this  principle  this  Government  has  freely 
received  emigrants  from  all  nations,  and  invested  them  with  the 
rio-hts  of  citizenship ;  and  whereas  it  is  claimed  that  such  Amer- 
ican citizens,  with  their  descendants,  are  subjects  of  foreign 
states,  owing  allegiance  to  the  governments  thereof ;  and  where- 
as it  is  necessary  to  the  maintenance  of  public  peace  that  this 
claim  of  foreign  allegiance  should  be  promptly  and  finally  dis- 
avowed," it  is  accordingly  and  finally  declared  that  "  any  declara- 
tion, instruction,  opinion,  order,  or  decision  of  any  officer  of  the 
United  States  which  denies,  restricts,  impairs,  or  questions  the 
right  of  expatriation,  is  inconsistent  with  the  fundamental 
principles  of  the  Republic." 

It  will  be  observed  that  the  main  object  of  this  provision  is  not 
to  declare  the  right  of  American  citizens  to  expatriate  themselves, 
but  that  it  seeks  to  affirm  that  the  citizens  of  other  countries  may 
do  so.  If  is  addressed  to  officers  of  the  United  States  and  7iot  to 
courts.  fi\e  courts  having  established  a  different  rule,  the  law 
could.o^-ar  cely  be  changed  by  a  mere  legislative  affirmation  of  a 
pi-inci^j  s  0  abstract  and  unlimited  in  its  terms  as  that  contained 
in  the  section  referred  to. 

/ 
I 


CHAPTER   Y. 

HUSBAND    AND   WIFE. 

Preliminary  remarks  as  to  the  "  domestic  relations. "  —  By  the 
expression  "domestic  relations"  is  meant  four  great  classes  of 
relations, — husband  and  wife,  parent  and  child,  guardian  and 
ward,  and  master  and  servant.  Out  of  these  spring  "relative 
rights,"  as  distinguished  from  the  mere  absolute  or  strictly  per- 
sonal rights  previously  considered.  One  of  these  relations  — 
husband  and  wife  —  is  derived  wholly  from  contract.  Another 
—  master  and  servant  —  is  at  the  present  time  a  pure  contract 
relation,  except  in  the  case  of  apprentices,  which  is  governed 
largely  by  legal  or  statutory  rules.  The  other  two  have  no 
contract  element.  They  have  in  law  certain  legal  or  equitable 
rules  attached  to  them.  It  is  not  enough  that  out  of  these 
spring  certain  natural  or  moral  obligations.  Before  they  can 
be  enforced  in  a  court  of  justice  they  must  ripen  into  legal 
rights.  In  a  broad  sense,  it  may  be  said  that  all  of  these 
rights  have  their  origin  in  the  family  or  family  relation,  and 
that  all  still  show  traces  of  their  origin.  Questions  arising  in 
respect  to  them  will  not  necessarily  be  solved  by  an  appeal 
to  the  law  of  contracts.  Each  branch  of  the  subject  must  be 
studied  by  itself,  and  to  a  considerable  extent  (particularly  in 
the  rules  governing  marriage)  from  an  historical  point  of  view. 

Owing  to  these  complex  rights,  a  wrongful  act  by  a  third 
person  may  be  both  a  violation  of  an  absolute  right  and  of  a 
relative  right.  Thus,  if  a  wife  be  injured  by  the  negligent  act 
of  a  stranger,  an  action  may  be  brought  for  the  injury  by  her, 
and  an  independent  action  for  the  loss  of  her  services  and 
society  by  her  husband.  Similar  rules  are  extended  to  injuries 
to  a  child  or  servant  depriving  a  parent  or  a  master  of  their 
services.  Sometimes  an  injury  may  be  done  to  the  relative 
right  where  there  is  no  violation  of  the  absolute  right.  An 
instance  is  that  of  the  seduction  of  a  daughter  while  in  her 
father's  service.  While  no  legal  right  of  the  daughter  may 
have  been  violated,  owing  to  her  consent,  the  father  may  still 
sue  for  loss  of  service. 


142  THE    LAW   OF   PEKSONS. 

The  first  relation  which  will  be  considered  is  that  of  husband 
and  wife.  As  the  topic  is  an  extensive  one,  it  will  be  presented 
under  three  divisions,  treating  of  the  Creation,  the  Dissolution, 
and  the  Legal  Consequences  of  the  relation. 

DIVISION   I.  —  The  Creation  of  the  Relation  of  Husband 

and  Wife. 

Section  I.  Capacity  to  Contract  Marriage.  —  It  is  a  general 
rule  of  law  that  capacity  to  contract  is  presumed,  and  one  attack- 
ing a  contract  must  show  incapacity.  Cases  of  incapacity  to 
enter  into  a  marriage  contract  are  divisible  into  two  principal 
classes :  one  involves  a  lack  of  power  to  consent ;  the  other 
assumes  the  mental  power,  but  denies  capacity  to  make  the  con- 
tract on  grounds  of  public  policy. 

Instances  of  the  first  class  are  defect  in  age,  idiocy,  and 
insanity.  Under  this  head  may  also  be  conveniently  stated  cases 
where  the  mental  power  is  sufficient,  but  the  will  is  not  exercised 
in  the  particular  instance  owing  to  force  or  fraud.  Cases  of 
the  second  class  are  consanguinity,  affinity,  and  prior  marriage. 
Here  may  also  be  placed  the  case  of  corporeal  impotence.  These 
are  of  general  application,  except  affinity.  There  may  also  be 
local  incapacities,  such  as  a  prohibition  of  one  divorced  for 
adultery  to  marry  during  the  life  of  the  other  party,  or  that 
members  of  a  royal  family  shall  not  marry  without  the  consent 
of  the  monarch.!  We  shall  first  consider  the  disabilities  arising 
from  lack  of  power  to  contract. 

(1)  Defect  in  age.  —  The  rule  of  the  common  law  is  that  the 
male  must  be  fourteen  and  the  female  twelve  years  of  age.  If 
either  party  be  under  that  age,  the  marriage  may  by  common 
law  be  treated  as  void  by  either  party  when  the  incapacitated 
person  arrives  at  the  proper  age.  This  rule  of  the  common 
law  is  not  founded  in  a  true  sense  of  justice,  as  it  enables  an 
adult  to  marry  a  minor  and  then  break  the  contract  at  will.^  If 
the  ages  of  the  parties  be  sufficient,  consent  of  parents  or  guar- 
dians is  unnecessary  at  common  law.-*^  The  common  law  on  this 
subject  is  the  ecclesiastical  law.  It  was  in  conformity  with  the 
spirit  of  the  Romish  Church,  which  abrogated  the  "paternal 
authority  "  of  the  Roman   or  civil   law,   and  placed  it  in  the 

^  12  Geo.  III.  c.  11.  the  parties  freely  cohabit  as  husband  and 

2  It  is  changed  by  statute  in  New  York,     wife.     Code  Civ.  Pro.  §  1744. 

so  that  only  the  infant  can  bring  an  action  3  By  ch.  24,  Laws  of  1887,  the  age  of 

for  divorce.     Nor  will  any   such  divorce    consent  in   New  York  to  a  marriage  is 

be  granted  if,  after  full  age  is  attained,     eighteen  in  the  case  of  males  and  sixteen 

in  the  case  of  females. 


HUSBAND   AND    WIFE.  143 

hands  of  the  Church.  So  that  the  marriage  of  males  of  fourteen 
and  of  females  of  twelve  was  unquestionably  valid  by  the  law  of 
England,  before  the  statutes  on  the  subject,  with  or  without  the 
consent  of  the  parents.  ^  By  statute  in  New  York  the  marriage 
of  a  female  under  sixteen  may  be  declared  void  if  it  took  place 
without  the  consent  of  her  father  or  other  guardian. ^ 

(2)  Mental  unsoundyiess. —  In  deciding  the  question  whether  a 
person  has  sufficient  mental  capacity  to  contract  a  marriage,  the 
question  for  the  court  is  whether  the  mind  of  the  party  was  dis- 
eased when  the  contract  was  entered  into.  If  so,  the  court  will 
not  inquire  as  to  the  extent  of  the  derangement.  ^  The  court 
does  not,  as  in  many  testamentary  cases,  deal  with  varieties  or 
degrees  of  strength  of  mind.  The  question  is  one  simply  of 
health  or  disease  of  mind.  If  any  contract  more  than  another 
is  capable  of  being  invalidated  on  the  ground  of  the  insanity  of 
either  of  the  contracting  parties,  it  should  be  the  contract  of 
marriage,  — an  act  by  which  the  parties  bind  their  property  and 
their  persons  for  the  rest  of  their  lives.*  In  other  cases  it  is 
said  that  the  same  degree  of  mental  power  which  will  enable 
him  to  make  a  deed  or  will  is  sufficient  to  enable  him  to  enter 
into  a  marriage.^ 

It  is  an  important  question  whether  the  marriage  (in  case  of 
the  insanity  of  one  of  the  parties)  is  utterly  void,  or  only  voidable 
at  the  election  of  the  insane  party  or  of  some  relative  or  other 
person  interested  to  avoid  the  marriage.  Many  of  the  cases  say 
that  it  is  absolutely  void. 

There  are,  however,  serious  objections  to  this  view.  One  is 
that  the  question  of  invalidity  may  be  raised,  not  by  a  direct 
proceeding,  but  collaterally,  and  by  any  person.  This  would 
be  highly  inconvenient  in  practice.  Respectable  authorities 
hold  that  it  cannot  be  raised  collaterally.  Another  objection 
is  that  this  view  enables  the  other  party,  being  of  sound  mind, 
to  enter  into  a  marriage  to  subserve  some  purpose  of  his 
own,  it  may  be,  sinister,  and  then,  after  accomplishing  it,  to 
repudiate  the  contract  at  will.  Nothing  can  be  more  repugnant 
to  justice,  and  even  to  public  decency,  than  such  a  view.  There 
are  some  forcible  remarks  in  a  recent  English  decision  upon 
this  point. ^     All  the  cases  agree  that  a  divorce  in  such  a  case  is 

1  Sherwood  v.  Ray,  1  Moore,  P.  C.  C.  suffices.  Banker  v.  Banker,  63  N.  Y. 
353,  398.     In  this  case  the  arguments  of    409. 

counsel  are  most  able  and  instructive.  *  Hancock  v.  Peaty,  supra,  p.  341. 

2  Code  of  Civ.  Pro.  §  1742.  6  Atkinson  v.  Medford,  46  Me.  510. 

3  Hancock  v.  Peaty,  L.  R.  1  P.  &  D.  6  i^  Hancock  v.  Peaty,  supra,  p.  341, 
335;  36  L.  J.  (Mat.  Cases)  57-  If  the  mind  it  is  said,  "It  may  well  be  that  cases 
be  sound  at  the  time  of  the  marriage,  it  might  arise  in  which  the  husband  should 


144  THE   LAW    OF    PERSONS. 

suitable  and  proper.  It  is  difficult  to  see  how  a  divorce  court 
would  have  jurisdiction  in  a  direct  proceeding  to  declare  the 
contract  void,  when  it  was  already  before  any  such  declaration 
utterly  void. 

The  New  York  statute  referred  to  in  the  note  has  set  this 
matter  at  rest  by  providing  that  an  action  to  annul  the  mar- 
riage can  only  be  maintained  in  behalf  of  the  idiot  or  lunatic, 
or  some  relative  having  an  interest  to  avoid  the  marriage.  ^ 

It  is  a  rule  of  the  common  (ecclesiastical)  law  that  relatives 
or  others  having  a  pecuniary  interest  in  avoiding  a  voidable 
marriage  may  become  plaintiffs  in  a  divorce  court  in  a  suit  to 
annul  the  marriage.  ^  The  case  cited  in  the  note  was  that  of 
a  marriage  alleged  to  be  void  on  account  of  affinity,  but  the  rea- 
soning extends  to  other  cases  of  voidable  marriages, 

(3)  Force  and  fraud.  —  The  case  of  a  marriage  obtained  by 
force  is  not  now  often  presented  to  the  courts  except  in  a  crim- 
inal aspect.     Statutes  must  be  consulted  upon  this  subject.^ (a) 

A  marriage  obtained  by  fraud  is  voidable,  and  not  void.  The 
defrauder  will  not  be  allowed  to  take  advantage  of  his  wrongful 
act.  The  divorce  can  only  be  obtained  by  the  injured  party,  or 
by  some  person  interested  to  avoid  the  marriage.*  The  fraud 
here  intended  does  not  consist  merely  in  disingenuous  represen- 
tations   concerning   property   or   social    position;-^    it  must  be 

be  shown  to  have  entered  into  the  marriage  of  the  lunatic  who  has  an  interest  to  avoid 

contract  with  a  full  knowledge  that  the  the  marriage.     Such  an  action  may  also 

woman   he   was   taking  as  his   wife   was  be  maintained  by  the  lunatic  at  any  time 

insane,  and  in  such   a   case  it  might   be  after  restoration  to  a  sound  mind  ;  but  in 

doubted   whether    he   would  not    be    es-  that  case  the  marriage  shall  not  be  annulled 

topped  from  coming  into  this"  (divorce  if  it  appears  that  the  parties  freely  cohab- 

court),    "or  any  other  court,  to  disaffirm  ited  as  husband  and  wife  after  the  lunatic 

his  own  act  and  allege  her  to  be  insane  was  restored  to  a  sound  mind." 
W'hom,  with  a  knowledge  of  all  the  facts,  he  ^  Sherwood  v.   Ray,  1  Moore  P.  C.  C. 

had  treated  as  sane,   when   it   served  his  853.     The  whole  subject  of  "  interest  "  for 

purpose  to  do  so.''  this  purpose  is  thoroughly  discussed  by 

1  Code   of  Civ.    Pro.   §   1746.      "An  counsel  in  this  case.      The  argument  of 

action  to  annul  a  marriage,  on  the  ground  Mr.    Austin    is    particularly    noticeable, 

that  one  of  the  parties  thereto  was  an  idiot,  See  also  Faremouth   v,   Watson,  1  Phill. 

may  be  maintained  at  any  time  during  the  355. 

life-time  of  either  party  by  any  relative  of  ^  The  English  law  is  found  in  24  &  25 

the  idiot  who  has  an  interest  to  avoid  the  Vict.  c.  100,  §  54,  as  modified  by  27  &  28 

marriage.  Vict.   c.   47.      For   New   York   law,   see 

"§1747.    An  action  to  annul  a  marriage  Penal  Code,  §  281. 
on    the   ground    that  one   of  the  parties  ■*  In  New  York,  see  Code  of  Civ.  Pro. 

thereto  was  a  lunatic,  may  be  maintained  §  1750,  containing  substantially  the  same 

at  any  time  during  the  continuance  of  the  provision  as  in  the  case  of  insanity, 
lunac}',  or  after  the  death  of  the  lunatic  in  ^  Wakefield  v.  Mackay,  1  Phill.  134  n.; 

that  condition  and  during  the  life  of  the  Klein  v.  Wolfsohn,  1  Abb.  N.  C.  134;  Clarke 

other  party  to  the  marriage  by  any  relative  v.  Clarke,  11  Abb.  Pr.  228. 

(a)  For  a  late  case  upon  this  subject,  see  Cooper  v.  Crane,[1891]  P.  369. 


HUSBAND    AND    WIFE.  145 

deception  going  to  the  very  substance  of  the  contract.  An 
instance  is  the  case  where  a  man  is  induced  to  marry  a  woman 
at  the  time  pregnant  by  another  man,  and  the  pregnancy  is 
misstated  or  concealed.  ^ 

The  second  class  of  cases,  embracing  those  where  there  is  no 
want  of  capacity  to  the  act  of  consent  itself,  will  now  be 
adverted  to. 

(1)  Consanguinity  and  affinitij.  —  These  may  be  grouped  to- 
gether. Marriages  between  close  relatives  are  void  by  the  laws 
of  all  civilized  nations  as  opposed  to  public  policy  and  decency. 
The  degree  of  relationship  is  not  fixed  with  definiteness,  but 
varies  in  different  States  or  countries.  The  marriage  would  in 
general  be  unlawful  between  lineal  relatives,  and,  in  the  col- 
lateral line,  between  brother  and  sister.  As  to  more  remote 
collateral  relatives  there  is  a  diversity  of  regulation.  Thus,  in 
some  States  a  marriage  between  uncle  and  niece  and  nephew  and 
aunt  would  be  incestuous;  in  others,  not.2(«)  Marriages  in  vio- 
lation of  the  rules  respecting  consanguinity  are  deemed  incestu- 
ous, and  the  parties  are  made  liable  to  criminal  prosecution.  ^ 

By  the  common  law  such  marriages  are  voidable  and  not  void. 
A  divorce  must  be  obtained  while  both  the  parties  are  living. 
The  prohibition  was  originally  derived  from  the  canon  or  eccle- 
siastical law,  finally  converted  into  statute  law  in  the  reign  of 
Henry  VIII.  The  Acts  of  Parliament  in  that  reign  only  made 
the  marriage  voidable,  and  adopted  the  rule  that  the  divorce 
must  be  had  during  the  life  of  both  parties,  and  could  only  be 
questioned  during  the  life  of  both  parties.*  At  the  present  time 
in  England  incestuous  marriages  are  utterly  void  to  all  intents 
and  purposes  whatever.^ 

1  Scott  V.  Shufeldt,  5  Paige,  43.  In  5  5  &  g  AVilliam  IV.  c.  54,  passed  Aug. 
this  case,  a  white  woman  had  a  mulatto     31,  1835. 

child  born  to  her,  and  at  the  same  time,  The  law  of  England  was  in  a  singularly 
concealing  the  fact,  stated  to  a  white  man  unsettled  condition  upon  this  subject  at 
that  he  was  the  father  of  the  child,  and  the  time  of  the  American  Revolution.  The 
he,  believing  it,  married  her.  Sloan  v.  so-called  "prohibited  degrees"  are  first 
Kane,  10  How.  Pr.  66  ;  Ferlat  r.  Gojon,  1  mentioned  in  25  Henry  VIII.  c.  22,  en- 
Hopkins  (N.  Y.),  478.  Meyer  v.  Meyer,  titled  "  An  Act  conceTuing  the  King's 
49  How.  Pr.  311.  Succession,"  passed  to  legalize  the  king's 

2  For  example,  there  is  no  prohibition  divorce  from  Queen  Catharine  and  to  bas- 
of  such  a  marriage  in  New  York,  while  tardize  the  Princess  Mary.  The  "  pro- 
there  is  in  Alabama.  See  Campbell  v.  hibited  degrees  "  will  be  found  in  section  3. 
Crampton,  18  Blatch.  150.  The  28   Henry  VIII.  c.   7,  repealed   the 

^  See  in  New  York,  Penal  Code,  §  302.     former  Act.     It  was  passed  to  establish 

*  Innocentius,  Institutiones  Canonici,     the  divorce  from  Anne  Boleyn  and  to  bas- 

1^32.  tardize  the  Princess  Elizabeth.      In  it  the 


(a)  Such  marriages  are  now  incestuous  and  void  in  New  York.     See  Laws,  1893, 
ch.  601. 

10 


146 


THE   LAW   OF    PEESONS. 


A  leading  instance,  under  the  English  statutes,  of  a  marriage 
prohibited  by  affinity  is  that  between  a  man  and  his  deceased 
wife's  sister.  The  act  of  William  lY.,  already  alluded  to,  hav- 
ing made  these  marriages  utterly  void,  the  courts  have  held  that 
such  a  marriage  is  not  only  void  when  contracted  in  England, 
but  that  it  creates  a  personal  disability,  following  an  English- 
man wherever  he  goes.  This  is  true  in  the  case  of  a  naturalized 
as  well  as  native  Englishman.^  The  rule  extends  to  a  marriage 
of  a  man  with  the  daughter  of  a  half  sister  of  his  deceased  wife, 
and  to  illegitimate  sisters  as  well  as  legitimate.^  Disqualifica- 
tion to  marry  by  reason  of  affinity  does  not  prevail  in  this  country. 

An  important  inquiry  has  arisen  as  to  the  point  whether  inca- 
pacity to  marry  on  the  ground  of  consanguinity  by  the  law  of  the 
domicile  will  be  recognized  as  fatal  in  the  place  where  the  mar- 
riage takes  place.  The  better  view  would  seem  to  be  that  in  all 
questions  of  capacity  involving  the  validity  of  the  marriage  in 
the  courts  of  the  place  where  contracted,  the  law  of  that  place 
should  govern.^     It  is  quite  a  different  question  as  to  the  view 


"  prohibited  degrees  "  were  again  stated. 
Another  Act,  passed  in  the  same  year,  re- 
fers to  and  contirms  the  former  statute. 
28  Henry  VIII.  c.  16.  Next  came  the 
32  Henry  VIII.  c.  38,  that  all  marriages 
should  be  lawful  between  persons  that 
were  not  prohibited  by  "  God's  laws  "  to 
marry  ;  and  "that  no  reservation  or  pro- 
hibition, God's  law  except,  shall  trouble 
or  impeach  any  marriage  without  the 
Levitical  degrees."  It  is  said  that  the 
phrase  "  Levitical  degrees  "  is  used  in 
this  Act  instead  of  "  (trohibited  degrees  " 
(the  phrase  used  in  the  earlier  statutes)  for 
the  purpose  of  rooting  out  the  doctrine  of 
"spiritual  affinity,"  which  prevented  god- 
fathers from  marrying  their  godchildren 
without  license  from  the  Pope.  After 
Queen  Mary's  accession,  and  during  her 
reign  and  that  of  Philip  and  Mary,  all  the 
prior  legislation  as  to  "prohibited  de- 
grees "  was  repealed.  1  Mary,  sess.  2,  c.  1  ; 
1  &  2  Philip  &  Mary,  c.  8,  "§§  16,  17,  19. 

In  Queen  Elizabeth's  reign  the  statute 
of  Phili])  &  Mary  was  repealed,  and  some 
of  the  older  statutes  revived.  In  this  re- 
vival much  confusion  was  occasioned,  there 
being  a  double  act  to  recognize  nothing 
which  impaired  Queen  Elizabeth's  title  to 
the  throne  and  at  the  same  time  to  con- 
tinue the  prohibited  degrees  of  consan- 
guinity.    1  Eliz.  c.  1,  §§  2,  10,  11. 

The  best  conclusion  from  all  this  va- 


riety of  enactments  is,  that  the  statute  32 
Henry  VIII.  c.  38,  and  28  Id.  c.  16,  re- 
mained in  force  by  revival,  and  that  the 
prohibited  degrees  are  the  "  Levitical  de- 
grees." Brook  V.  Brook,  9  H.  L.  Cases, 
193.  A  table  of  these,  compiled  from  the 
statutes  of  25  Henry  VIII.  c.  22,  and  28 
Henry  VIII.  c.  7,  are  given  by  Lord 
Coke  in  his  Institutes.  2  Inst.  683,  and  2 
Coke  upon  Littleton,  p.  235  n.,  and  see 
also  3  Burus's  Ecclesiastical  Law  (3d  ed. ), 
402. 

1  Brook  V.  Brook,  9  H.  L.  Cases,  193  ; 
s.  c.  3  Sm.  &  G.  481  ;  Sherwood  v.    Ray, 

I  Moore,  P.  C.  C.  398  ;  Mette  v.  Mette,  1 
Sw.  &  T.  416  ;  Fenton  v.  Livingstone, 
3  Macqueen,  H.  L.  Cases,  497,  544.  Simi- 
lar rules  prevail  in  the  case  of  other  statu- 
tory prohi'oitions.     Sussex  Peerage  Case, 

II  CI.  &  F.  85,  137.  Penal  disabilities, 
however,  do  not  follow  the  person  in  this 
manner. 

2  Regina  v.  Brighton,  1  B.  &  S.  447. 

^  This  point  was  greatly  considered  in 
Sottomayor  v.  DeBarros,  L.  R.  2  P.  D. 
81;  also  on  appeal  L.  R.  3  P.  D.  1,  and 
again  L.  R.  5  P.  D.  94.  There  the  mar- 
riage was  contracted  in  England  between 
two  Portuguese  who  could  not  legally 
marry  in  Portugal,  being  first  cousins  ;  but 
could,  had  they  been  English,  have  married 
in  England.  The  lower  court  held  that 
an  English  court  was  not  bound  to  recog- 


HUSBAND   AND   WIFE.  147 

to  be  taken  of  tlie  same  facts  in  the  courts  of  the  country  where 
the  parties  are  both  domiciled.  It  is  still  more  clear  that  the 
incapacity  cannot  be  considered  where  one  of  the  parties  was 
domiciled  in  the  place  of  the  marriage,  and  the  other  abroad.^ 

(2)  Corporeal  impotence.  —This  is  a  cause  of  divorce  involving 
the  validity  of  the  marriage  contract.  The  marriage  is  not  void, 
but  voidable,  and  can  only  be  questioned  during  the  life  of  both 
parties. 2  The  grounds  on  which  invalidity  may  be  urged  are  that 
as  one  of  the  incidents  to  marriage  is  consummation  and  the 
procreation  of  children,  where  consummation  is  impossible,  the 
parties  should  not  be  tied  together  without  the  will  of  the  iujured 
party.  "  Impotence  "  may  be  maintained  on  two  grounds  :  one  is 
malformation  of  body  (and  this  is  the  most  common  case) ;  the 
other  is  such  a  permanent  mental  condition  as  to  the  act  of 
consummation  {e,  g.,  hysteria)  as  makes  it  impossible. ^ 

Mere  wilful  refusal  of  consummation  is  not  of  itself  proof  of 
impotence,  though  after  a  long  period  it  may  lead  to  an  inference 
of  it  The  incapacity  must  be  permanent,  else  there  is  no  valid 
ground  for  divorce,*  Some  of  the  additional  rules  on  the  subject 
are  that  the  incapacity  must  have  existed  at  the  time  of  the 
marriage.  Mere  sterility  will  not  suffice.^  If  there  is  a  prob- 
ability that  capacity  can  be  produced  by  a  slight  surgical  opera- 
tion, the  marriage  will  not  be  declared  void;  but  the  court 
cannot  compel  the  wife  to  submit  to  it.^  Refusal  to  submit 
to  inspection  is  a  circumstance  that  may  be  taken  into  account 
in  reaching  a  conclusion,  and  may  lead  to  a  divorce.'' 

A  presumption  of  impotency  in  English  law  arises  from  a 
cohabitation  of  three  years  without  consummation.  This  is 
called  the  rule  of  "triennial  cohabitation,"  It  does  not  arise 
from   a   shorter   period,    and   when   it   has    arisen,   it   may  be 

nize  the  incapacity,  the  marriage  having  L.  R.  3  P.  D.  1,  reached  an  erroneous  con- 
taken  place  in  England.       L.  R.  2  P.  D.  elusion. 

81.     The  appellate  court  reversed  the  de-  i  Sottomayor  v.   De  Barros,    L.    R.    5 

cision,    holding   that   the    English   court  P.  D.  94.     Simonin   v.   Mallac,   2  S\v.  & 

must  recognize  the  foreign  disqualification,  T.  67. 

where  both  parties  were  domiciled  abroad.  2  j^^  ^   ^  ^  L.  R.  i  p.  D.  559  ;  p.  v.  S. 

On  a  new  trial  in  the  Probate  Court  the  37  L.  J.  (Prob.  &  Mat.)  80. 

case  developed  the  fact  that  only  one  of  the  ^  P.  v.  L.,  L.  R.  3  P.  D.  73  n.  ;  G.  v. 

parties  was  domiciled  abroad.      The  Lord  G.,  L.  R.  2  P.  &  D.  287. 

President,  in  a  convincing  argument,  held  *  S.  w.  E.,  3  Sw.  &,  T.  240.    In  this  case 

that  the  foreign  law  should  not  be  con-  the  impotency  was  not  congenital, 

sidered.       His     reasoning,     however,     is  ^  Devanbagh  v.   Devanbagh,   5  Paige, 

equally  applicable  to  the  case  where  both  554,  556,  557. 

of  the  parties  are  domiciled  abroad.    L.  R,  ^  Devanbagh  v.  Devanbagh,   6  Paige, 

5  P.  D.  94.     It  is  impossible,  on  a  careful  175. 

survey  of  the  whole  subject,  to  avoid  the  "<  L.  v.  L.,  L.  R.  7  P.  D.  16. 
conclusion   that  the    appellate   court,  in 


148  THE   LAW   OF   PERSONS. 

rebutted.^  This  rule  does  not  at  all  affect  the  case  where 
malformation  is  affirmatively  proved.  Great  delay  frequently 
occurs  in  this  class  of  cases.  This  is  not  a  strict  bar  to  the 
action,  but  renders  it  necessary  that  the  evidence  should  be 
highly  clear  and  satisfactory.  ^  Delay  may  also  lead  to  the 
inference  of  bad  faith,  and  require  explanation. ^ 

In  New  York  this  troublesome  branch  of  the  subject  is  settled 
by  statute.  An  action  must  be  commenced  beforfo  two  jears 
have  expired  since  the  marriage.^ 

(8)  Polygamy.  —  This  is  prohibited  by  the  laws  of  all  civil- 
ized nations.  A  polygamous  marriage  is,  in  general,  utterly 
void,  so  that  no  divorce  is  necessar}^  Such  a  marriage  is 
criminal,  punishable  in  the  early  English  statute  of  1604  by 
death. ^  There  is  an  exception  in  the  Act  in  favor  of  those 
whose  husband  or  wife  shall  remain  continually  beyond  the 
seas  by  the  space  of  seven  years  together,  or  whose  husband  or 
wife  shall  absent  himself  or  herself  for  seven  years  within  her 
majesty's  dominions,  the  one  not  knowing  the  other  to  be  living 
within  that  time.  There  are  other  exceptions  in  favor  of  those 
who  have  been  divorced  in  the  ecclesiastical  court. 

This  statute  has  been  the  model  of  much  American  legislation 
upon  this  subject.  The  rules  in  New  York  are  in  substance  the 
same,  except  that  five  years  are  substituted  for  seven,  and 
another  exception  is  added  in  favor  of  one  who  has  been  sen- 
tenced to  imprisonment  for  life.  This  is  on  account  of  the  doc- 
trine of  "civil  death  "  prevailing  in  that  State.  The  punishment 
is  reduced  to  imprisonment  in  the  State  prison  for  not  more 
than  five  years.     The  text  of  the  statute  is  found  in  a  note.^ 

1  Marshall  v.  Hamilton,  10  Jur.  n.  s.  VI.  c.  12,  §  16.      The  foregoing  statutes, 

853  ;  F.  V.  D.,  4  Svv.  &  T.  86.  as  well  as  earlier  and  later  acts,  were  re- 

'^  Castleden  v.  Castleden,  9  H.  L.  Cases,  pealed  by  9  Geo.  IV.  c.  31,  in  connection 

186.  Avith  24  &  25  Vict.  c.  95.    The  existing  law 

^  Ewens  v.  Ewens,  9  Jur.  n.  s.  1301.  is  found  in  24  &  25  Vict.  c.  100,  as  nicdi- 

4  Code  of   Civ.   Pro.  §  1752.     This  is  tied  by  27  &  28  Vict.  c.  47. 
practically  a  statute  of  limitations.    Kaiser  ^  Jn  case  of  the  absence  of  one  of  the 

V.  Kaiser,  16  Hun,  602.  parties  for  the  period  of  five  years,  and  the 

^  1  Jac.  I,   c.   11.      The   preamble   to  belief  of  the  other  party  that  he  or  she  is 

this   act   is   curious:   "For   as   much   as  dead,  the  maniage  is  not  wholly  void,  but 

divers  evil  disposed  persons,  being  married,  only  from  the  time  that  it  is  so  declaied 

run  out   of  one   county  into  another,  or  by  a  court  of  competent  authority.   2  R.  S. 

into  places  where  they  are  not  known,  and  139,  §  6. 

there   become  to  be  married,  having  an-  Penal    Code,  §§  298-302,   both   inclu- 

other  husband  or  wife  living,  to  the  great  sive.       §  298:    "A   person  who,  having 

dishonor  of  God,    and  utter   undoing   of  a  husband  or  wife  living,  marries  another 

divers  honest  men's  children  and  others,  person,  is  guilty  of  bigamy  and  is  punish- 

Be  it  therefore  enacted,"  etc.  able  by  imprisonment  in  a  penitential y  or 

There  are  still  earlier  statutes,  4  Edw.  State  prison  for  not  more  than  five  years. 
I.  St.  3  ;  18  Edw.  III.  St,  3,  c.  2  ;  1  Edw.  "  §  299.  The  last  section  does  not  extend. 


HUSBAND   AND   WIFE. 


149 


Similar   legislation    is   found  in  other  States.     There    is    also 
important  legislation  by  Congress  as  to  the  territory'  of  Utah. 

(4)  Prohibition  of  mixed  marriages,  or  of  so-called  ^' miscege- 
nation.^^ —  Legislation  of  this  kind  is  fomid  in  a  number  of  the 
American  States  as  applicable  to  marriages  between  whites  and 
persons  of  African  descent.  This  legislation  is  founded  upon 
a  local  theory  of  public  policy,  and  a  belief  that  such  marriages 
have  an  injurious  effect  upon  society.  ^  Under  the  Virginia  law, 
the  party  claimed  to  be  a  negro  must  have  one  fourth  negro  blood. 
If  he  have  one  drop  less,  the  marriage  is  not  unlawful.  ^  The 
North  Carolina  act  on  this  subject  is  said  in  a  recent  case  to  be 
still  in  force.  3  The  prohibition  in  Texas  does  not  apply  to  mis- 
cegenation without  previous  marriage  between  the  parties.*  In 
Tennessee  the  marriage  between  a  white  person  and  one  of  mixed 
blood  to  the  third  generation  is  void  ab  initio.^  Such  a  marriage 
will  be  respected  in  North  Carolina  if  marriage  takes  place  in 
another  State  where  the  husband  is  domiciled,  and  the  parties 
come  there  to  reside;^  but  this  will  not  be  the  case  if  the  parties 
simply  go  abroad  to  evade  the  North  Carolina  law  and  then  re- 
turn.^ By  the  laws  of  Georgia,  white  and  colored  persons  cannot 
marry.^  (a)     It  is  presumed  that  if  a  white  man  and  colored 


1,  To  a  person  whose  formerhusband  or  wife 
has  been  absent  for  five  years  successively, 
then  last  past,  without  being  known  to  him 
or  her  within  that  time  to  be  living,  and 
believed  by  him  or  her  to  be  dead ;  or,  2,  To 
a  person  whose  former  marriage  has  been 
pronounced  void  or  annulled  or  dissolved 
by  the  judgment  of  a  court  of  coiu[ietent 
jurisdiction  for  a  cause  other  than  his  or 
her  adultery;  or,  3,  To  a  person  who, 
being  divorced  for  his  or  her  adultery, 
has  received  from  the  court  which  pro- 
nounced the  divorce  permission  to  marry 
again  ;  or,  4,  To  a  person  whose  former 
husband  or  wife  has  been  sentenced  to  im- 
prisonment for  life." 

§  300.  This  refers  to  the  lawfulness  of 
a  trial  in  the  county  in  whieli  the  de- 
fendant is  arrested,  as  well  as  that  in  which 
the  offence  was  committed. 

§  301.  "A  person  who  knowingly  en- 
ters into  a  marriage  with  another  which  is 
prohibited  to  the  latter  by  the  foregoing 
provisions  of  this  chapter,  is  punishable  by 
imprisonment  in  a  penitentiary  or  State 
prison  for  not  more  than  five  years,  or  by 


a  tine   of  not   more    than   one   thousand 
dollars,  or  both." 

A  person  may  lawfully  marry  again  o/i 
the  very  day  that  he  ia  divorced.  In  such 
a  case  there  would  be  no  crime  committed. 
Merriam  v.  Wolcott,  61  How.  Pr.  377. 

1  Kinney  v.  Commonwealth,  30  Gratt. 
858  ;  Green  v.  State,  r>8  Ala.  190.  In 
Kinney  r.  Commonwealth,  supra,  the  par- 
ties left  Virginia  and  went  for  a  few  days 
to  the  District  of  Columbia,  married,  and 
returned.  It  was  decided  that  the  law  of 
the  domicile  should  govern,  and  the  mai'- 
riage  was  not  onlj^  declared  void,  but  the 
parties  were  punished  criminally.  See 
also  Frasher  v.  State,  3  Tex.  App.  263  ; 
Exr.  of  Dupre  i'.  Boulard,  10  La.  Ann.  411. 

2  McPherson  v.  Commonwealth,  28 
Gratt.  939. 

3  State  V.  Hairston,  63  N.  C.  451  ; 
State  V.  Reinhardt,  Id.  547- 

*  Moore  v.  State,  7  Tex.  App.  608. 
»  Carter  v.  Montgomerj',    2  Tenn.  Ch. 
216. 

6  State  V.  Ross,  76  N.  C.  242. 

"  State  V.  Kennedy,  Id.  251. 

8  Scott  V.  State,  39  Ga.  321.    The  law- 


{(')  State  V.  Tutty,  41  Fed.  R.  753. 


250  TUE  LAW   OF  PERSONS. 

woman  should  leave  a  State  where  their  marriage  was  prohib- 
ited and  should  marry  in  a  State  where  there  was  no  such 
i)]-ohil)ition,  the  courts  of  the  latter  State  would  not  hold  the 
marriage  void  on  account  of  its  opposition  to  the  law  of  their 
domicile. 

Interesting  questions  have  arisen  upon  the  point  whether  if 
slaves  intended  to  marry,  but  were  prohibited  from  doing  so  by 
the  law  of  their  domicile,  and  afterwards  lived  together,  a  mar- 
riage could  be  inferred.  Subsequent  cohabitation  is  evidence  of 
ratification.^  This  doctrine  would  not  apply  unless  they  had  in- 
tended, while  in  slavery,  to  live  as  husband  and  wife,  so  far  as 
the  law  would  permit.^  In  some  of  the  former  slave  States 
such  marriages  have  been  validated  by  statute  since  slavery  was 
abolished.  Such  legislation  is  valid. ^  (a)  The  Kentucky  court 
has  held  that  a  declaration  before  a  clerk  of  the  county  by  two 
former  slaves  legalized  their  "  customary  "  marriage-  It  did  not 
institute  a  new  marriage.^ 

The  principle  is  well  stated  as  follows :  emancipation  gave  to 
the  slave  his  civil  rights ;  and  a  contract  of  marriage,  legal  and 
valid  by  the  consent  of  the  master  and  the  moral  assent  of  the 
slave,  although  dormant  during  the  slavery  of  the  parties,  pro- 
duced from  the  moment  of  their  freedom  all  the  effects  which 
result  from  such  contracts  among  free  persons.^  The  relation 
assumed  in  the  above  proposition  must  continue  down  to  the 
moment  of  emancipation,  (h)  The  correct  rule  seems  to  be  that  if, 
after  the  emancipation,  the  parties  live  together  as  husband  and 
wife,  and  if  before  emancipation  they  were  married  in  the  form 
which  either  usage  or  law  had  established  for  the  marriage  of 
slaves,  the  subsequent  mutual  acknowledgment  should  be  held 
to  constitute  a  valid  marriage.^ 

fiilness-of  restrictions  upon  the  marriages  McGee,  12  Bush,  428.    Laws  of  Ala.  1868, 

of    different  races,    etc.,   is  discussed   in  Ortlinanee    No.    28,   approved   Nov.    30, 

Lonas  v.  State,  3  Heisk.  287.  1867,  amended  Dec.   SI,   1868,   construed 

1  Ross  V.    Ross,    34    La.    Ann.    860  ;  in  Jackson  v.  State,  53  Ala.  472. 
Washington  v.  Washington,  69  Ala.  281.  *  Dowd  v.  Hurley,  78  Ky.  260. 

2  Downs  V.  Allen,  10  Lea,  652 ;  Wash-  ^  Pierre  v  Fontenette,  25  La.  Ann. 
ington  V.  Washington,  supra.  617.     On  this  theory  no  validating  statute 

3  Lawsof  North  Carolina,  1866,  ch.  40,  would  he  necessary.  See  also  Minor  r. 
and  Code  §  1281,  construed  in  State  v.  Jones,  2  Redf.  289 ;  Jones  v.  Jones,  45 
AVhitford,  86  N.  C.  636.  See  Ordinance  Md.  144  ;  Haden  v.  Ivey,  51  Ala.  381  ; 
of  Ala.,  Se])t.  29,  1865  ;    Rev.    Stat,    of  State  v.  Adams,  65  N.  C.  537. 

Ky.,  Supplement  1866,  No.  37,  approved  ^  Jones  v.  Jones,  36  Md.  447,  456. 

Feb.   14,    1866,   constraed   in    Brown   v. 

(«)  Livingston   v.    Williams,    75   Tex.  only  where  the  eohahitation   was   exclu- 

653  ;  Scott  v.  Raub,  88  Va.  721;  Clement  sive.     Branch  v.  Walker,  102  N.  C.  34. 
V.  Riley,  33  S.  C.   66.     The   statutes  in  (b)  See  Cautelou  v.  Doe,  56  Ala.  519. 

North  Carolina  were  intended  to  operate 


HUSBAND    AND    WIFE.  151 

Section  II.  The  marriage  contract  itself.  —  (1)  Its  essential 
elements. —  One  essential  element  in  a  marriage  contract  is  pres- 
ent consent  to  a  marriage.  This  does  not  mean  present  assent  to 
a  cohabitation  or  mere  act  of  living  together,  but  to  a  marriage. 
It  is  accordingly  of  consequence  to  determine  the  true  meaning 
of  a  marriage. 

A  marriage  may  properly  be  defined  to  be  the  union  for  life  of 
a  man  and  woman  having  the  capacity  to  marry,  to  the  exclusion 
of  all  other  persons.  It  must  be  the  intent  of  the  parties  to 
constitute  such  a  relation.  But  the  intent  alone  is  not  enough. 
A  rule  of  law  must  then  attach  which  prevents  them  from  dis- 
solving the  relation  even  by  mutual  consent,  or  in  any  other  man- 
ner than  that  which  the  law  permits.  Marriage  is  then  initi- 
ated by  contract.  It,  however,  creates  a  condition  or  status  over 
which  the  mere  will  of  the  parties  no  longer  has  any  control,  (a) 

In  order  that  the  subject  be  thoroughly  understood,  it  must 
be  studied  Idstorically.  The  development  or  evolution  of  this 
branch  of  the  law  must  be  sought,  not  merely  in  the  law  of 
contracts,  but  also  in  the  law  of  the  Church,  or  the  canon  law. 
At  the  time  of  William  the  Conqueror,  ecclesiastical  questions 
were  separated  from  those  of  a  temporal  nature,  and  were  dis- 
posed of  exclusively  in  the  ecclesiastical  courts.  Marriage  and 
divorce  were  treated  as  ecclesiastical  questions.  In  this  way 
a  system  of  marriage  and  divorce  law  was  developed  by  church- 
men, who  had  recourse  to  the  canon  law  for  principles  to  guide 
their  decisions.  This  system  came  to  the  American  States 
by  adoption,  and  with  some  modifications  still  prevails.  There 
is  thus  a  churchly  or  Christian  element  in  this  law  which  is 
peculiar  to  itself.^ 

The  essential  elements  of  a  marriage  contract  are  these:  — 

First.  There  must  be  a  true  and  serious  assent.  A  marriage 
entered  into  as  a  joke,  and  so  understood  by  both  parties,  is  no 
true  marriage.''^  Still,  if  the  outward  signs  of  a  true  intent  were 
present,  it  would  seem  that  it  could  not  be  claimed  that  there 
was  no  real  intent,  as  that  is  to  be  derived  from  expressions  and 
outward  acts. 

i  Maine's  Ancient  Law,  lltli  Ed.  pp.  English    common    law    borrows    far    the 

158,  159.     It  is  there  said  that  the  canon  greatest  number  of  its  fundamental  prin- 

law  "  in  no  one  particular  departs  so  widely  ciples  (upon  the  subject  of  marriage)  from 

from  the  spirit  of  the  secular  jurisprudence  the  jurisprudence  of  the  canonists, "  p.  159. 

as  in  the  view  it  takes  of  the  relations  2  MeOlurg  v.  Terry,  21  N.  J.  Eq.  225. 

created  by  marriage."      And  again,  "the  Swinburne  on  Spousals,  Sect.  XI.  par.  33. 

{a)  Legislation  annulling  the  relation  against  the  impairment  of  contracts. 
of  marriage  is  not  within  the  prohibition  Maynard  v.  Hill,  125  U.  S.  190  ;  State  v. 
of  the  Constitution  of  the  United  States    Tutty,  41  Fed.  R.  753. 


252  THE   LAW    OF   PERSONS. 

Second.  The  marriage  cannot  be  made  by  future  words  {vcrla 
de  futuro),  but  only  by  present  words  {verba  de  prcesenti).  The 
former  would  be  an  executory  contract  to  marry,  —  an  engage- 
ment, —  and  not  an  actual  marriage.  This  principle  will  not  be 
changed  even  though  the  words  of  future  promise  be  followed  up 
by  cohabitation.  At  one  time,  in  England,  the  ecclesiastical 
courts  would  order  a  marriage  in  such  a  case.  That  could  not 
be  done  in  any  of  the  American  States,  as  there  is  no  ecclesias- 
tical tribunal  here  having  compulsory  power  of  this  kind.  The 
jurisdiction  existed  in  England  by  reason  of  the  fact  that  the 
ecclesiastical  court  was  a  true  court  established  by  law.  Owing 
to  the  difference  in  our  position,  it  is  the  prevailing  view  that 
such  a  case  is  simply  a  promise  to  marry ;  and  if  cohabitation 
ensue,  it  is  but  a  case  of  seduction.  ^  (a)  This  principle  is  particu- 
larly applicable  where  the  parties  looked  forward  to  a  formal 
ceremony,  and  did  not  agree  to  become  husband  and  wife  with- 
out it.  2 

Third.  There  must  be  freedom  of  will,  absence  of  fraud, 
duress,  etc.  These  have  been  sufficiently  considered  under  the 
topic  of  "  capacity. " 

(2)  The  form  mid  requisites  of  the  contract.  —  Foreign  mar- 
riages. —  The  question  as  to  the  form  of  a  marriage  "is  one  of 
great  difficulty.  This  grows  out  of  the  inquiry  as  to  the  influ- 
ence of  the  canon  law  upon  the  subject  of  form.  There  are  two 
general  modes  of  proving  a  marriage,  —  direct  and  indirect. 
The  evidence  is  direct  when  an  actual  marriage  is  shown  by 
testimony  of  eye-witnesses.  It  is  indirect  when  the  marriage 
is  inferred  from  the  acts  of  the  parties  and  accompanying 
circumstances. 

Direct  evidence.  —There  are  certain  cases  in  which  direct 
evidence  is  necessary.  These  are  prosecutions  for  bigamy  and 
for  "  criminal  conversation,"  ^  and  perhaps  an  action  for  divorce.* 

1  Cheney  v.  Arnold,  15  N.  Y.  345,  ^  The  meaning  of  this  expression  is  a 
where  the  whole  subject  is  reviewed,  civil  action  brought  by  a  husband  against 
Turpin  v.  Pub.  Adm.,  2  Bradf.  424  ;  Dun-  an  alleged  adulterer  for  the  seduction  of  a 
can  V.  Duncan,   10  Ohio  St.  181;  Robert-  wife. 

son  V  State,  42  Ala.   509  ;  Peck  v.   Peck,  *  There  may  be  other  cases.    This  point 

12  R.  I.  485;  Hebblethwaite  v.  Hepworth,     is  discussed  in  Collins  v.  Collins,  80  N.  Y. 
98  111.  126,  1.  10.     See  also  Bishop  on  Marriage,  Di- 

2  Peck  V.  Peck,  12  R.  I.  485  ;  Port  v.  vorce,  and  Separation,  vol.  II.  §§  742-758. 
Port,  70  111.  484:  

(a)  A   presumption    of    marriage   may  the  contract.     Stoltz  v.   Doering,  112  111. 

sometimes  oe  raised  by  a  contract  per  verba  234  ;  Cartwright  v.  McGown,  121  111.  388. 

defuturo   followed  by  cohabitation  ;    but  See  also  Bishop  on  Jlarriage,  Divorce,  and 

this  is  rebutted  by  proof  that  cohabitation  Separation,  vol.  I.  §§  353-377. 
was  not  intended  as  a  consummation  of 


HUSBAND   AND   WIFE.  153 

The  point  would  then  arise,  what  would  it  be  necessary  to  prove 
in  such  a  case. 

According-  to  the  rules  of  English  law,  as  laid  down  by  the 
highest  court,  there  is  no  sufficient  direct  evidence  of  a  marriage 
unless  it  took  place  in  the  presence  of  a  priest.  The  "  priest  " 
here  intended  is  one  in  holy  orders  recognized  by  the  Church  of 
England.  It  was  accordingly  held,  after  great  consideration, 
that  a  marriage  in  Ireland  b}'  a  regularly-placed  minister  of  the 
Presbyterian  church,  according  to  the  rites  of  that  church,  at  his 
dwelling-house,  was  void,  so  that  a  subsequent  marriage  entered 
into  by  one  of  the  parties  with  a  third  person,  both  of  the  parties 
to  the  prior  ceremony  being  still  living,  was  not  a  case  of 
bigamy.^  The  priest  must  be  a  third  person.  It  will  not  be 
sufficient  that  the  priest  is  the  bridegroom,  and  goes  through 
the  form  of  marrying  himself  to  the  woman. ^  The  theory  on 
which  the  case  proceeds  is  that  the  priest  is  not  simply  present 
to  perform  the  religious  ceremony,  but  is  there  as  well  to  be 
a  witness  to  the  contract,  and  that  he  may  prevent  the  marriage 
from  taking  place  in  case  any  just  impediment  is  brought  to  his 
knowledge.^ 

These  judgments,  made  since  the  American  Revolution,  are 
not  binding  on  our  courts,  though  deserving  of  great  respect 
from  the  high  character  of  the  judges,  and  the  great  research  and 
ability  displayed.  If,  however,  Queen  v.  Millis  is  to  be  accepted 
as  a  correct  view  of  the  English  common  law,  it  can  scarcely 
be  claimed  that  it  could  ever  have  been  adopted  in  this  country. 
There  were  in  the  early  settlement  of  the  American  States  few 
priests  of  the  kind  referred  to  in  this  decision.     After  the  Revo- 

1  This  was  the  result  of  the  famous  case  in  Queen  v.  Millis  led  to  a  statute  (7  &  8 

of    Queen    v.    Millis,    10  CI.    &   F.  534;  Vict.  c.  81)  legalizing  such  marriages. 

House  of  Lords,  1844.     The  judges,  six  in  2  Beamish  v.   Beamish,  9  H.  L.  Cases, 

number,  were  equally  divided  in  opinion.  274. 

This  resulted  according  to  the  rule  in  that  ^  The  decisions  in  Queen  v.  Millis  and 

court  in  an  afHrmance  of  the  decision  of  Beamish   v.    Beamish    establish   that   the 

the  lower  court.     This  (juestion  could  not  early  marriage  law  in  England  was  essen- 

bave  been  presented  by  a  case  arising  in  tially  different  from  that  which  prevailed 

England,  since  the  mode  of  constituting  a  at  the  same  time  in  continental  Europe, 

marriage  was  there  regulated  by  statute.  It  is  conceded  on  all  hands  that  until  the 

26  Geo.  II.  c.  33.  as  modified  by  3  Geo.  decree  of  the  Council  of  Trent,  A.  D.  laGS, 

IV".  c.  75,  4  Geo.  IV.  c.  17,  and  Id.  c.  76.  the  general  law  of  western  Europe  did  not 

As  that  statute  did  not  extend  to  Ireland,  require   a  priest  to   attend.     Even   .since 

the  question  was  one  at  common  law.    The  that  decree  the  priest  attends  an  a  wifMess 

result  in  Queen  v.  Millis  was  in  opposition  simpl}',   and  the  marriage  will  be   valid, 

to  the  opinions  of  many  of  the  earlier  Eng-  even  though  he  dissent  from  it.     The  sub- 

lish  judges,  and  particularly  to  the  theory  of  stance  of  the  decree  is  found  in  9  H.  L. 

the  great  case  of  Dalrymple  v.  Dalrymple,  Cases,  317-320. 
2  Hagg.  Consist.  Rep.  54.     The  decision 


154  THE    LAW   OF    PEKSONS. 

lution,  to  hold  with  this  decision  would  be  to  affirm  that  it  was 
part  of  the  common  law  of  each  American  State  that  a  marriage  is 
void  as  to  all  civil  rights,  including  legitimacy  of  children,  unless 
there  was  present  a  priest  of  a  foreign  church  established  by 
foreio-n  law,  or  one  recognized  by  that  church  as  a  priest.  Such 
a  conclusion  would  lead  to  a  practical  absurdity. 

There  is  respectable  authority  in  the  British  courts  for  hold- 
ing that  the  rule  is  not  to  be  api)lied  in  the  colonies  where  there 
are  no  priests.  ^  It  must  be  more  clearly  so  under  the  relations 
existing  between  the  American  States  and  England.  It  would 
seem,  therefore,  that  whether  the  theory  of  Lord  Stowell  be 
adopted, 2  or  that  of  the  court  in  Queen  i\  Millis,  the  result  is 
the  same  in  this  country.  This  is  that  the  presence  of  a  min- 
ister is  not  by  our  common  law  necessary  to  the  validity  of  a 
marriage.  The  main  ingredient  is  consent.  If  this  consent  is 
given  in  words  having  an  immediate  effect  (verba  de  prcesenti), 
the  marriage  is  complete.  If  the  future  tense  be  employed,  the 
contract  is  an  engagement  to  marry,  and  nothing  more,  even 
though  it  be  followed  by  cohabitation.  ^  {a) 

Indirect  evidence  and  presumptions. —  By  indirect  evidence  is 
meant  the  case  where  facts  and  circumstances  are  shown,  such 
as  usually  attend  the  state  of  marriage,  and  which,  by  a  process 
of  reasoning,  might  lead  the  mind  to  the  conclusion  that  a  mar- 
riage had  taken  place.     This  evidence  may  be  resorted  to  even 

1  Maclean  v.  Cristall,  Perry's  Oriental  Davis  v.   Davis,   7  Daly,  308  ;    Hynes   v. 

Cases,  75.    See  dicta,  Beamish  v.  Beamish,  McDerniott,  7  Abb.  N.  C.  98. 
supra.  In   Massachusetts  the  canon    law   was 

-  Dalrymple    v.   Dalrymple,    2    Hagg.  never  adopted,  and  it  was  never  received 

Consist.  Rep.  54.  as  common  law  that  parties  could  marry 

3  The  cases  maintaining  this  point  are  without  an  officiating  minister  or  magis- 

now  very  numerous.    See  Hayes  v.  People,  trate.     The  acts  of  the  legislature  sustain 

25  N.  Y.  390  ;  Van  Tuyl  v.   Van  Tuyl,  8  this  rule,  excejit  in  the  case  of  Friends  or 

Abb.  Pr.  N  s.  5  ;  Wright  v.  Wright,  48  Quakers.     Commonwealth  v.  Munson,  127 

How.  Pr.  1  ;  Bissell  v.  Bissell,  55  Barb.  Mass.  459. 

325  ;  Guardians  of  the  Poor  v.  Nathans,  2  The  case  of  Denison  v.  Denison,  35  Md. 

Brews.    (Pa.)    149;    People  v.   Taylor,   1  361,   adopts  the  view  taken  in  Queen  v. 

Mich.  (N.   P.)  198  ;    Richard  v.  Brehm,  Millis,    and    exacts    solemnization    by    a 

73    Pa.   St.    140  ;    Dickerson    v.    Brown,  priest.     See  also  Dyer  v.  Brannock,  2  Mo. 

49  Miss.  357  ;   Hutchins  v.   Kimmell,  31  App.  432,  444-449. 
Mich.  126  ;  Floyd  v.  Calvert,  53  Miss.  37  ; 

(ffi)  See  also,  as  upholding  the  general  425  ;  Peck  v.  Peck,  Id.  479.  Common- 
rule,  Gall  V.  Gall,  114  N.  Y.  109  ;  State  law  marriages  are  valid  under  statutes 
V.  Cooper,  103  Mo.  266  ;  Mathewson  v.  regulating  the  marriage  ceremony,  unless 
Phcenix  Iron  Foundry,  20  Fed.  R.  281,  such  statutes  expressly  declare  them  void, 
and  cases  cited  ;  Matter  of  Hamilton,  2  State  v.  Bittick,  103  Mo.  183.  But  the 
Connolly,  471  ;  The  State  v.  Walker,  36  oiiposite  view  is  taken  in  Beverlin  v. 
Kan.  297;  Teter  v.  Teter,  101  Ind.  129  ;  Beverlin,  29  W.  Va.  732. 
contra,   Norcross  v.  Norcross,  155   Mass. 


HUSBAND   AND   WIFE.  155 

in  States  where  a  ceremonial  marriage  is  required,  since  it  leads 
to  the  conclusion  that  such  a  marriage  has  taken  place.  One 
attacking  the  marriage  will,  however,  be  allowed  to  show  that 
there  was  no  marriage,  and  so  rebut  the  presumption. 

The  presumption  in  favor  of  marriage  when  parties  live 
together  as  husband  and  wife  is  very  strong,  and  this  presump- 
tion must  be  met  by  strong,  distinct,  and  satisfactory  dis- 
proof, (a)  This  is  particularly  true  after  the  lapse  of  a  great 
length  of  time.i  The  language  of  Lord  Campbell  is  "that  a 
presumption  of  this  sort  in  favor  of  marriage  can  only  be  nega- 
tived by  disproving  every  reasonable  possibility."'^ 

Some  of  the  circumstances  which  tend  to  raise  a  presumption 
of  marriage  are  these :  — 

First,  cohabitation,  or  the  act  of  living  together  as  husband 
and  wife.  Such  cohabitation  raises  the  presumption  of  marriage. 
A  court  will  not  suppose  the  relation  of  the  parties  to  be  illicit, 
but,  in  the  absence  of  evidence  to  the  contrary,  will  assume  it  to 
belawfuL3(?>) 

This  principle  is  subject  to  this  qualification:  that  if  the 
cohabitation  be  in  its  origin  illicit  or  meretricious,  it  will 
be  presumed  to  continue  to  be  so,*  unless  there  is  evidence 
that  this  relation  ceased,  and  a  new  and  lawful  relation 
commenced  by  mutual  consent,  (c)  A  subsequent  cohabita- 
tion after  such  a  change  of  intent  might  raise  a  presumption 
of  a  marriage.^ 

Under  this  rule,  if  parties  enter  into  a  void  contract  of  mar- 
riage, and  the  impediment  to  marriage  is  removed,  a  marriage 
may  be  presumed  from  subsequent  cohabitation,  etc.^  It  has 
been  decided,  however,  that  this  principle  cannot  be  applied  to 
uphold  a  marriage,  where  one  of  the  parties  had  committed 
bigamy,  though  the  other  was  innocent,  as  a  new  marriage  could 
not  be  presumed  after  the  bigamous  relation  ceased,  since  the 
innocent  party  would  have  no  motive  to  remarry.  This  seems 
to   be  a  highly   technical  doctrine,   since  the  whole  subject  of 

1  Piers  V.  Piers,  2  H.  L.  Cases,  331.  case  is  but  &\\^\\t.     Canjolle  u.  Ferrie,  23 

2  Id.  p.  380.  N.  Y.  90. 

3  Ferrie  v.  Pub.  Adm.,  3  Bradf.  151  ;  ^  Lapsley  v.  Grierson,  1  H.  L.  Cases, 
s.  c.  4  Bradf.  28  ;  Caujolle  v.   Ferrie,  23  498  ;  Hill  v.  Hibbit,  19  W.  R.  250. 

jf  _  Y.  90.  ^  Ii"se  V.  Clark,  8  Paige,  574.    See  also 

*  Cunninghams     v.     Cunninghams,    2     a  learned  note  in  18  Am.  Law  Reg.  639. 
Dows  Rep.  482.     The  presumption  in  this 


(«)  Hynes  v.  MeDermott,  91  N.  Y.  451.  (c)  Harbeck  v.  Harbeck,  102  N.  Y.  714; 

(h)  State  V.  Schweitzer,  57  Conn.  532  ;     Vincent  v.  Vincent,  16  Daly,  534. 
see  also  Degnan  v.  Deguan,  43  N.  Y.  St. 
Rep.  646. 


156  THE   LAW  OF   PERSONS. 

presumptions  is  a  fiction  in  favor  of  marriage,  and  a  presumed 
public  policy.  The  decision  has  also  the  bad  effect  of  leaving 
an  innocent  woman  in  a  worse  position  than  she  would  have 
been  in,  had  she  known  of  the  bigamy ;  for  in  that  case,  when 
the  former  wife  died,  there  would  be  a  motive  to  marry,  and  a 
marriage  might  be  presumed.  ^ 

Second,  general  reputation  raises  a  presumption  of  marriage. ^ 
If  the  repute  be  divided,  it  may  be  established  by  preponderating 
repute.^  In  Scotland,  "habit  and  repute"  are  proof  that  the 
parties  have  interchanged  that  consent  which  constitutes  the 
contract.'* 

Third,  declarations  of  the  parties  to  the  marriage.  These 
may  be  admitted  as  evidence  to  prove,  and  in  some  instances 
to  disprove,  a  marriage.  This  kind  of  evidence  would  not 
be  sufficient  to  establish  a  marriage  in  a  trial  for  polygamy. 
A  general  statement  may  now  be  made  that  marriage  may  for 
most  purposes  be  proved  by  evidence  of  acts  of  recognition, 
matrimonial  cohabitation,  general  reputation,  and  declarations 
of  the  parties.^ 

The  rule  applies  in  favor  of  one  who  sues  for  injury  causing 
a  husband's  death.^  The  repute,  etc.,  should  be  shown  to  exist 
in  the  domicile  of  the  parties.'^  Cohabitation  and  reputation 
should  go  together.     One  alone  will  not  suffice.^ 

Fourth,  in  special  cases,  when  there  is  no  better  evidence, 
hearsay,  such  as  recognition  of  the  marriage,  has  been  admitted 
as  evidence.^  (a)  Under  the  present  law  of  New  York,  an  alleged 
wife  may  testify  to  recognition  on  the  husband's  part,  introduc- 
tion to  his  relatives,  etc.^*^  When  a  presumption  of  marriage 
is  once  raised,  it  will  not  be  rebutted  by  the  fact  that  there 
was  a  subsequent  actual  marriage  of  the  parties,  even  though 
the  subsequent  marriage  should  be  in  the  wife's  maiden 
name.^^  It  is  a  rule  that  reputation  proper  to  be  shown  in 
the  case  cannot  go  beyond  the  range  of  knowledge  of  the 
cohabitation.^^ 

1  O'Gara  v.  Eisenlolir,  38  N.  Y.  296.  ^  Leliigli  R.  R.  Co.  v.  Hall,  61  Pa.  St. 

2  Doe  V.  Fleming,  4  Biiif:;.  266.  361. 

3  Lyle  V.  EUwood,  L.  R.  19  Eq.  98.  ''  Com.  v.  Omohundro's  Adm.,  2  Brews, 
But  see  Barnum  v.  Barniim,  42  Md.  251.  (Pa.)  298. 

■*  Campbell  v.  Campbell,   L.   R.  H.  L.  8  Cargile  v.  Wood,  63  Mo.  501. 

1,  Se.  App.  182.  9  Chamberlain  v.   Chamberlain,  71  N. 

s  The  cases  on  this  point  are  very  nu-     Y.  423. 
merous,  and  it  is  scarcely  necessary  to  cite        i"  People  v.  Bartliolf,  24  Han,  272. 
them.  11  Betsinger  v.  Chapman,  88  N.  Y.  487. 

1"  Badger  v.  Badger,  Id.  546. 


(a)  Eisenlord  v.  Clum,  126  N.  Y.  552. 


HUSBAND    AND    WIFE,  157 

It  cannot  be  shown  by  general  reputation  that  marriage  did 
not  exist, ^  though  when  reputation  of  a  marriage  is  asserted,  it 
may  be  shown  in  answer  that  there  is  a  divided  reputation,  and 
that  among  some  friends  it  was  reputed  that  the  connection  was 
illicit  instead  of  matrimonial. ^  The  princi})le  on  which  recog- 
nition rests  requires  that  it  should  be  open,  |)ublic,  and  con- 
tinuous. The  policy  of  the  law  is  opposed  to  a  secret  marriage. 
It  is  difficult  to  establish  it  without  clear  evidence.^  The  ques- 
tion whether  direct  evidence  of  marriage  must  be  given  in  an 
action  for  divorce  was  recently  discussed  in  the  New  York  Court 
of  Appeals,  but  not  decided,^ 

In  various  States  there  are  statutes  prescribing  the  registration 
of  marriages  in  some  public  office.  In  that  case  there  is 
authority  for  holding  that  an  official  certificate  from  the  regis- 
ter's office  will  be  evidence  of  the  marriage.  It  is  in  general 
ordained  in  the  statute  itself  that  it  may  be  used  in  evidence. 
It  will  not,  however,  be  the  only  means  of  establishing  the 
marriage.  The  testimony  of  witnesses  may  be  resorted  to, 
or  evidence  of  cohabitation  and  repute  as  before. 

Rules  for  determining  the  validity  of  foreign  marriages. — 
By  the  phrase  "  foreign  marriages  "  is  here  meant  such  as  are 
made  in  one  jurisdiction,  while  their  validity  is  questioned  in 
another.  This  may  happen  under  differing  systems  of  law  in 
the  same  country,  as  where  a  Scotch  marriage  is  assailed  in  an 
English  court. ^  This  matter  involves  the  doctrine  of  "conflict 
of  laws,"  or  "international  private  law,"  as  it  is  sometimes 
called.  It  can  only  be  considered  incidentally  here.  Two  prin- 
cipal questions  arise:  one  is,  the  validity  of  the  marriage  where 
the  forms  and  ceremonies  differ  from  those  of  the  place  where 
the  parties  are  domiciled,  or  where  the  trial  is  had ;  the  other, 
where  conflicting  rules  of  public  policy  prevail  in  the  two  juris- 
dictions, as  to  the  propriety  of  the  marriage  itself. 

As  to  the  first  question,  the  general  rule  is  that  the  validity  of 
marriages  as  to  form  is  governed  by  the  law  of  the  place  where 
the  contract  is  entered  into.  If  valid  there,  it  is  valid  every- 
where. If  void  there,  it  is  in  like  manner  void  everywhere. 
An  illustration  is  the  requirement  of  the  presence  of  a  priest. 
This  is  a  branch  of  a  so-called  "comity  "  or  courtesy  of  nations, 
which  recognizes  the  validity  of  acts  done  in  other  nations  or 
jurisdictions.     Lord  Stowell  has  well  stated  the  rule  in  a  cele- 

1  Bartlett  v.  Muslinar,  28  Hun,  235.  ^  Scotch  "  common  law  "  is  mainly  de- 

2  Badger  v.  Badger,  supra.  rived  from  the  Roman  law,   and  widely 

3  Cunningham  v.  Burdell,  4  Bradf.  343.  differs  in  most  respects  from  the  common 
*  Collins  V.  Collins,  80  N.  Y.  1,  10.  law  of  England. 


15S  THE  LAW   OF   PEKSONS. 

Lratcd  case,^  which  arose  in  Scotland.  He  said,  this  case  "being 
entertained  in  an  English  court,  it  must  be  adjudicated  accord- 
ino-  to  the  principles  of  English  law  applicable  to  such  a  case. 
But  the  only  principle  applicable  to  such  a  case  by  the  law  of 
England  is  that  the  validity  of  Miss  Gordon's "  (the  alleged 
wife's)  "marriage  rights  must  be  tried  by  reference  to  the  law 
of  the  country  where,  if  they  exist  at  all,  they  had  their  origin. 
Having  furnished  this  principle,  the  law  of  England  withdraws 
altogether,  and  leaves  the  legal  question  to  the  exclusive  judg- 
ment of  the  law  of  Scotland. "  ^ 

This  doctrine  of  comity  has  been  carried  so  far  as  to  uphold 
in  the  courts  of  the  State  where  the  parties  reside,  marriages 
contracted  elsewhere,  in  evasion  of  the  law  of  the  domicile  as 
to  matters  of  form. ^  (a)  These  have  been  called,  in  England, 
"  Gretna  Green  "  marriages,  from  the  fact  that  English  people, 
being  desirous  to  evade  certain  burdensome  marriage  ceremonies 
of  the  English  law,  crossed  the  border  to  Gretna  Green  or  other 
place  in  Scotland,  and  after  a  marriage  without  ceremonies, 
valid  there,  returned  to  England.*  A  statute  in  the  country  of 
the  domicile  may  make  such  a  marriage  void  there,  though  it 
may  still  be  valid  in  the  place  where  it  w^as  contracted.^ 

As  to  the  second  class  of  cases,  a  different  rule  prevails.  A 
nation  or  State  is  not  bound  to  sacrifice  its  views  of  public  policy 
to  a  spirit  of  courtesy  towards  other  States  or  nations.  This 
is  particularly  true  where  there  is  a  statute  in  the  country  of 
the  domicile  prohibiting  the  marriage.  In  such  a  case  the  mar- 
riage may  be  valid  in  the  State  where  contracted,  and  yet  void 
in  the  domicile.  An  instance  is  the  rule  in  England  already 
referred  to,  that  an  Englishman  shall  not  marry  a  deceased 
wife's  sister,  nor  a  member  of  the  royal  family  without  the  con- 
sent of  the  reigning  monarch.  A  penal  disability  stands  upon 
a  different  footing.  That  is  supposed  to  be  territorial  simply 
in  its  effect,  unless  the  words  of  the  statute  indicate  that  it  is 

1  Dalrymple  v.  Dalrymple,  2  Hagg.  was  married  in  this  manner:  but  afterwards 
Consist.  R.  54.  went   through   a    ceremonial   marriage  at 

2  Id.,  pp.  58,  59.  Newcastle,  England. 

^  Compton  j;.  Bearcroft,  2  Hagg.  Con-  ^  Gretna  Green  marriages  are  now  prac- 

sist.  R.  444  n.  ;  Scrimshire  v.  Scrimshire,  tically  abolished,  as  a  residence  of  one  of 

Id.  395,  412,  413  ;  Medway  v.   Needham,  the  parties  in  Scotland  of  twenty-one  days 

16  Mass.  157.  is  now  necessary.    19  &  20  Vict.  c.  90. 


4 


Lord  Chancellor  Eldon,  when  young, 


(ft)  Gardner  v.  Attorney-General,  60  L.  is  valid  in  Japan,  is  valid   in  England. 

T.    R.    839.      A   marriage  celebrated   in  Brinkley   v.  Attorney-General,   L.   R.   15 

Japan,  according  to  its  laws,    between   a  P.  D.  76.     See   also  Smith  v.  Smith,  62 

British    subject  with   an   Irish    domicile  N.  J.  Law,  207. 
of  origin,  and  a  Japanese  woman,  which 


HUSBAND   AND    WIFE.  159 

to  have  a  more  extended  operation.  An  instance  is  a  statutory 
prohibition  that  one  divorced  for  adultery  sliall  not  marry  again 
during  the  life  of  the  other  party.  A  marriage  in  another 
State  where  there  is  no  such  rule  will  be  valid  in  the  State 
prohibiting  it,  unless  there  are  words  in  the  statute  including  a 
marriage  abroad.^  («) 

Independent  of  prohibitory  statutes,  a  court  in  a  civilized 
country  will  not  recognize  a  polygamous  marriage.  This  is 
so  repugnant  to  the  general  sentiment  of  mankind  that  it  could 
not  be  tolerated  that  a  court  of  justice  should  enforce  claims  of 
right  founded  upon  it.  In  England,  it  has  been  placed  on  the 
ground  that  it  is  not  a  Christian  marriage,  and  that  an  English 
divorce  court  will  not  enforce  matrimonial  obligations  growing 
out  of  marriages  that  are  not  in  their  nature  Christian. ^ 


DIVISION    11.  —  Annulment,    Dissolution,    and  Judicial 
Separation. 

A  proceeding  for  these  purposes  is  termed  a  divorce.  A 
divorce  may  be  either  total  or  partial.  When  total,  it  may  be 
either  an  annulment  or  a  dissolution.  When  partial,  it  is  called 
divorce  a  mensa  et  tlioro  (from  bed  and  board).  These  will  now 
be  considered  in  their  order. 

Section  I.  Annulment.  — There  is  an  important  distinction  in 
total  divorce  between  a  case  of  annulment  and  one  of  dissolu- 
tion. An  annulment  is  for  a  cause  existing  at  the  time  of  the 
marriage,  making  it  voidable.  The  effect  of  it  in  general  is  to 
adjudge  that  there  not  only  is  not  now,  but  that  there  never  has 
been,  a  marriage.  Accordingly,  the  children  are  illegitimate. 
The  wife  has  no  claim  even  to  alimony  from  her  supposed  hus- 
band's estate  for  her  support.  The  English  divorce  court  main- 
tains under  the  statutes  that  in  a  suit  for  nullity,  alimony 
pendente  lite  may  be  continued  until  the  decree  for  divorce  is 
made  absolute.^  The  reason  is,  that  there  is  no  divorce  until 
that  time.  Lapse  of  time  is  no  bar  by  the  ecclesiastical  law  to 
a  suit  of  this  kind,  on  the  ground  that  the  function  of  the  court 
is  simply  to  pass  a  declaratory  sentence  that  the  marriage  is  null 
and  void.* 

1  Thorp  V.  Thorp,  90  N.  Y.  602;  Van  3  S.,  falsely  called  B.  v.  B.,  L.  R.  9 
Voorhis  v.  Brintnall,  86  N.  Y.  18.  P.  D.  80, 

2  Hyde  v.  Hyde,  L.  R.  1  P.  &  D.  «  Duins  v.  Donovan,  3  Hagg.  Ecc.  301, 
130.  305  ;  Johnston  v.  Parker,  3  Phill.  39. 


(a)  See  also  Moore  v.  Hegeman,  92  N.  Y.  521  ;  Wilson  v.  Holt,  83  Ala.   528  ; 
contra.  Pennegar  v.  State,  87  Tenn.  244. 


IGO 


THE    LAW    OF   PERSONS. 


The  principles  governing;  a  divorce  for  nullity  have  been 
applied  to  a  case  where  A.,  being  engaged  to  be  married  to  a 
ladv,  had  induced  her  to  accept  bills  of  exchange  which  he 
neolected  to  i)ay,  and  when  the  holders  threatened  to  make 
her  a  bankrupt,  represented  that  the  only  way  to  avoid  the  pro- 
ceedings, as  well  as  exposure,  was  to  marry  him ;  accompanying 
his  representations  with  some  threats  leading  to  the  conclusion 
that  she  did  not  act  with  freedom  in  marrying  him.  Under  the 
circumstances,  the  marriage  was  declared  to  be  null  and  void.  ^ 
The  court  seems  to  have  gone  upon  the  view  that  undue  influ- 
ence and  moral  restraint,  operating  upon  the  Avill  of  the  lady, 
were  sufficient  to  avoid  the  marriage  upon  her  application. 

A  special  case  not  governed  by  general  principles  of  law  is 
sometimes  presented  where  a  statute  provides  that  a  marriage 
shall  only  be  void  from  the  time  that  it  is  so  declared  by  a  court 
of  competent  jurisdiction.  ^  In  this  case,  the  woman  would  have 
been  wife  from  the  time  of  the  marriage  until  the  time  of  annul- 
ment, and  the  children  in  existence  prior  to  that  time  would  be 
legitimate.^ 

In  an  action  or  suit  for  annulment,  counsel  fees  may  be 
allowed  by  the  court  to  enable  a  wife  to  prosecute  or  defend  it, 
but  not  alimony  pendente  lite.  The  last  is  only  allowable  when 
the  existence  of  the  marriage  is  satisfactorily  established.*  (a) 

The  ecclesiastical  court  may  make  a  decree  of  "  confrontation  " 
in  an  action  for  nullity  of  marriage ;  ^  but  cannot  make  such  a 
decree  in  cases  of  dissolution.^ 

Section  II.  Dissolution.  —  A  marriage  may  be  dissolved  by  the 
death  of  one  of  the  parties,  by  legislative  act,  judicial  decree, 


1  Scott  ».'.  Sebright,  L.  R.  12  P.  D.  21. 

2  In  New  York,  2  R.  S.  139,  §  6,  this 
doctrine  is  ap])lied  to  a  case  of  a  second 
marriage  where  the  first  husband  or  wife 
had  absented  himself  or  herself  for  five 
successive  years  without  being  known  to 
the  other  party  to  be  living.  It  would 
not  be  legal  adultery  in  such  a  case  for  the 
parties  to  the  second  marriage  to  cohabit 
after  knowledge  was  obtained  that  the  first 
party  was  living,  until  a  judgment  of  an- 
nulment was  declared.  Valleau  v.  Val- 
leau,  6  Paige,  20. 

^  There  is  an  important  qualification  to 
the  subject  of  legitimacy  in  the  New  York 


Code  of  Civil  Procedure,  §  1745,  whereby 
the  children  of  an  innocent  party  to  a 
bigamous  marriage  are  declared  to  be  the 
legitimate  children  of  that  parent,  who  is 
entitled  to  their  custody  and  to  appoint  a 
guardian  of  their  persons  by  will. 

4  Collins  V.  Collins,  80  N.  Y.  1.  The 
English  rule  is  different.  S.,  falsely  called 
B.  V.  B.,  L.  R.  9  P.  D.  80. 

5  Enticknap  v.  Rice,  4  Sw.  &  T.  136. 

6  Hooke  V.  Hooke,  Id.  236.  A  decree 
of  confrontation  means  an  order  directing 
a  party  to  come  before  witnesses  for  the 
purpose  of  identification. 


{n)  Meo  V.  Meo,  15  N.  Y.  Civ.  Pro.  R.  N.  Y.  Civ.  Pro.  R.  321  ;  O'Dea  v.  O'Dea, 

308.    But  alimony  has  been  allowed  the  31   Hun,  441  ;   Isaacsohn  v.  Isaacsohn,  3 

wife  in  an  action  brought  by  the  husband  Month.  Law  Bui.  73. 
to   annul   the  marriage.     Lee  v.  Lee,  4 


HUSBAND   AND   WIFE.  161 

and,  in  some  States,  by  a  sentence  to  imprisonment  for  life  for 
crime.  Divorce  by  legislative  act  was  at  one  time  in  England 
the  only  mode  of  dissolving  a  marriage.  This  method  has  now 
disaj)peared  there,  a  regular  court  of  divorce  having  been  estab- 
lished. The  power  of  a  State  legislature  to  grant  divorces  of 
this  kind  exists  in  this  country,  except  where  it  has  been  with- 
drawn by  constitutional  provision,  as  it  has  been  in  New  York.^ 
A  sentence  to  imprisonment  for  life  is  a  divorce  in  New  York 
and  California.  A  subsequent  pardon  will  not  re-establish  the 
marriage  relation. ^  The  only  case  which  it  will  be  necessary  to 
consider  at  any  length  is  divorce  by  judicial  decree. 

The  whole  subject  of  judicial  divorce  for  a  cause  arising  after 
the  marriage  was  in  England,  until  1857,  vested  in  the  eccle- 
siastical courts,  subject  to  review  by  the  king  in  Privy  Council. 
At  present  there  is  a  court  of  Divorce  and  Matrimonial  Causes.^ 
The  law  upon  this  subject  is  to  be  found  in  the  reports  of  eccle- 
siastical courts,  and  those  of  the  Judicial  Committee  of  the 
Privy  Council.*  There  being  no  ecclesiastical  court  in  this 
country,  its  jurisdiction,  if  it  exist,  must  be  vested  by  statute 
in  some  other  court.     This  is  usually  the  Court  of  Chancery. 

The  ecclesiastical  law  is,  however,  as  far  as  recognized  in 
those  courts,  a  branch  of  the  common  law  of  England.  It  is 
not  an  absolute  equivalent  to  the  "canon  law."  It  differs  from 
the  canon  law  in  several  important  respects.  It  is  frequently 
called  by  English  lawyers  and  judges  the  "king's  ecclesiastical 
law. "  ^  It  has  been  held  in  New  York  that  while  the  English 
ecclesiastical  law  is  no  part  of  the  common  law  of  the  State, ^ 
yet  when,  by  the  statutes,  any  part  of  the  jurisdiction  exercised 
by  those  courts  is  given  to  the  State  court,  the  settled  principles 
and  practice  there  become  a  precedent  and  guide  here,  so  that 
the  grant  of  jurisdiction  carries  with  it  by  implication  the 
powers  indispensable  to  its  proper  exercise.^  (a) 

1  Const,  of  New  York,  Art.  I.  §  10.  ^  See  remarks  of  the  Lord  Chancellor 

2  2  R.  S.  139,  §§5,7.  "  Civil  death,"  and  of  Lord  Cotteniiam,  in  Queen  v. 
with  its  consequences,  is  considered  in  the     Millis,  10  CI.       F.  534. 

case  of  Avery  v.  Everett,  110  N.  Y.  317.  ^  Burtis  v.  Biirtis,  Hopkins,  557. 

3  See  20  &  21  Vict.  c.  85.  "  Brinkley  v.  Brinkley,  50  N.  Y.   184  ; 
*  At  one  time  the  Appellate  Court  was     Griffin  v.  Griffin,   47  N.  Y.   134,  137.     It 

a   large   and   unwieldy   body,    called   the  is  further  decided  that  the  courts  of  New 

"  Court  of  Delegates."     This  has  been  so  York   have  no    common-law    jurisdiction 

long  superseded  that  it  is  unnecessary  to  over  the  subject  of  divorce,  and  that  their 

do  more  than  refer  to  it.     It  is  described  authority   is   confined    altogether    to   the 

ill  3  Blackstone's  Commentaries,  66.     Its  exercise   of  such  express     and  incidental 

jaiisdiction  was  withdrawn  by  2  &  3  Wm.  powers  as  are  conferred  by  statute.    Erken- 

IV.  c.  92,  and  by  3  &  4  Id.  c.  41.  brach  v.  Erkenbrach,  96  N.  Y.  456. 

(a)  Chamberlain  v.  Chamberlain,  63  Hun,  96  ;  Dickenson  v.  Dickenson,  Id.  516. 

11 


IQ2  THE   LAW   OF   PERSONS. 

The  subject  may  be  considered  under  the  following  heads :  — 

I.  The  parties  to  the  action. 

II.  Methods  of  procedure,  including  alimony  pendente  lite, 
counsel  fees,  and  expenses. 

III.  Defences :  (1)  denial ;  (2)  recrimination ;  (3)  condonation ; 
(4)  procurement;  (o)  connivance;  (6)  collusion;  (7)  delay  in 
prosecution,  including  statute  of  limitations. 

lY.  Effect  of  the  divorce:  (1)  support  of  wife;  (2)  legiti- 
macy and  (3)  custody  of  children ;  (4)  property  rights ;  (5)  penal 
disabilities. 

y.  Foreign  divorces. 

I.  The  parties  to  the  action.  —  One  may  have  a  good  cause  of 
action  for  a  divorce,  and  yet  not  be  able  to  present  it  to  the  court. 
He  may,  for  example,  be  a  non-resident,  or  the  party  from  whom 
the  divorce  is  sought  may  be  a  non-resident.  These  points  are 
now  in  most  instances  regulated  by  statute  in  the  respective 
States.  In  New  York  there  is  no  action  for  dissolution  except 
for  adultery.  1 

A  question  may  be  presented,  whether  if  one  of  the  parties 
becomes  a  lunatic  after  the  offence  is  committed,  the  case  can 
go  forward.  It  was  first  held  in  the  English  court  of  divorce 
that  if  the  defendant  has  become  insane,  an  action  for  adultery 
cannot  be  prosecuted.  The  court  thought  that  such  an  action 
was  in  the  nature  of  a  criminal  proceeding,  quasi  in  poenam. 
The  party  may  be  deprived  of  status  by  reason  of  it.  Divorce, 
it  was  said,  was  not  a  strict  right  like  remedies  for  breaches  of 
ordinary  contracts,  but  rather  ex  gratia,  depending  largely  on 
notions  of  public  policy. ^  This  case  was  distinguished  from  an 
action  for  a  partial  divorce,  as  there  is  no  change  of  status  (the 
parties  still  remaining  married).  Such  a  divorce,  it  is  agreed, 
may  go  forward  notwithstanding  the  insanity  of  the  defendant.^ 
On  an  appeal  to  the  House  of  Lords,  this  decision  was  reversed, 
on  the  ground  that  adultery,  though  a  grievous  sin,  is  not  a 
crime  at  common  law,  and  that  the  analogies  and  precedents  of 

1  See  Code  of  Civil  Procedure,  §  1756.  jured  party  within   the   State  when   the 

This  section  makes  the  jurisdiction  of  the  action   was   commenced, 

court  turn  upon  any  one  of  four  points :  2  Mordaunt  v.  Mordaunt,  L.  E.  2  P.  & 

(1)  residence  of  both  parties  in  the  State  D.  109;  Bawdon  v.  Bawdon,  2  Sw.  &  T. 

where  the  offence  was  committed  ;  (2)  mar-  417. 

riage  within  the   State  ;    (3)  residence  of  ^  Parnell  v.  Parnell,  2  Hagg.  Consist. 

plaintiff  within  the  State  where  the  offence  E.  169.     But  see  on  the  general  subject, 

was  committed  a7id  when  action  was  com-  Mansfield  ;;.    Mansfield,    13    Mass.    412  ; 

menced  ;    (4)   commission    of  the  offence  Broadstreet  v.  Bioadstreet,   7  Mass.  474  ; 

•within  the  State,  and  residence  of  the  in-  Wray  v.  Wray,  19  Ala.  522. 


HUSBAND   AND   WIFE.  163 

criminal  law  have  no  authority  in  a  divorce  court.  ^  (a)  The 
court  carefully  abstained  from  expressing  an  opinion  as  to  an 
action  brought  m  helicdf  of  a  lunatic.  ^  The  lunatic  defendant  in 
this  case  was  represented  by  a  guardian  ad  litem. 

If  a  plaintiff  dies  in  the  course  of  an  action  for  a  divorce,  it 
cannot  be  continued.  Nor  can  a  suit  be  brought  after  the  death 
of  one  of  the  parties  without  a  statute  to  that  effect.  It  has 
recently  been  said,  "that  a  man  can  no  more  be  divorced  after 
his  death  than  he  can  after  his  death  be  married  or  sentenced 
to  death."  ^  There  are  in  some  American  States  statutes  allow- 
ing a  divorce  in  some  instances  after  the  death  of  one  of  the 
parties.^  The  jurisdiction  of  a  court  over  an  absent  defendant 
will  be  considered  under  the  head  of  "foreign  divorces." 

11.  Methods  of  procedure,  including  alimony  pendente  lite, 
counsel  fees,  and  expenses.  —  Some  preliminary  remarks  should 
be  made  upon  the  subject  of  stating  the  plaintiff's  case.  There 
are  two  opposite  dangers  against  which  the  court  must  guard 
in  a  divorce  case.  One  is,  that  both  parties  may  desire  the 
divorce,  and  may  resort  by  mutual  consent  to  collusive  methods 
to  procure  it.  Such  conduct  would  be  a  fraud  upon  the  court, 
and,  if  ascertained,  a  decree  obtained  by  collusion  would  be 
set  aside. ^  The  other  danger  is  that  in  a  contested  suit  cor- 
rupt testimony  may  be  offered  by  one  party  against  the  other, 
who  may  not  be  able,  owing  to  surprise,  to  defend  himself.  It 
is  to  meet  this  latter  danger  that  some  special  rules  prevail  as  to 
the  statement  of  the  case  in  the  pleadings.  The  general  rule  is 
that  the  plaintiff  should  specify  the  place  and  time,  where  and 
when,  and  the  person  with  whom,  the  offence  was  committed. 
This   strictness   may  be  dispensed  with  when  the    plaintiff    is 

1  Mordaimt  i».  Moncreiffe,   L.  R.  2  Sc.  tain  cases  of  nullity, —  c.  (/.,  idiocy,  lunacy, 

&  Div.  App.  Cas.  374.  force,  or  fraud. 

^  It  is  now  settled  that  a  committee  of  ^  In  England,  an  officer  called  a  queen's 

a  lunatic  may  petition  for  a  divorce  on  Proctor  may  interv^ene  and  allea;e  collusion, 

his    behalf  on   the    ground   of  adultery.  Barnes  v.  Barnes,  L.   R.  1  P.  &  D.  505  ; 

Baker  v.  Baker,  L.  R.  5  P.  D.  142.  23  &  24  Vict.  c.   144,  §  7  (I).       He  may 

3  Per  BowEN,  L.  J.,  in  Stanhope  v.  also  intervene  to  show  cause  why  an  inter- 
Stanhope,  L.  R.  IIP.  D.  103,  108.  mediate  decree  shonld  not  be  made  final, 

*  See  §§  1746-1750  of  the  New  York  and   may   adduce  fresh  evidence  for  that 

Code  of  Civil  Procedure,  as  applied  to  cer-  purpose.     Crawford  v.  Crawford,  L.  R.  11 

P.  D.  150. 


(a)  Insanity  as  a  defence  to  an  action  but  1iy  c.  81  of  25  &  26  Vict.  §  8  of  the 

for  a  divorce  was  considered  in  Hanbury  former  Act  was  re]iealed,  and  the  opera- 

V.  Hanbury,   61  L.  J.  P.  115  ;  Yarrow  v.  tion  of  the  Act  was  made  perpetual.     By 

Yarrow,  Id.  69.  36  &  37  Vict.  c.  31,  §  1,  the  operation  of 

(6)  By  §  8  of  this  statute  it  was  pro-  23  &  24  Vict.  c.  144,  §  7,  was  extended  so 

vided   that  the  Act   should   continue   in  as  to  include  actions  for  nullity  as  well  as 

force  until  July  31,  1862,  and  no  longer  ;  for  divorce. 


1C4:  THE    LAW   OF   PERSONS. 

unable  to  make  his.  allegations  with  particularity.  In  this 
case  he  should  state  his  inability  to  be  specific,  and  then  state 
the  facts  as  particularly  as  his  means  of  knowledge  will  permit.  ^ 

Questions  as  to  the  evidence  necessary  to  obtain  divorce  are 
peculiar  in  their  nature.  Letters  or  admissions  of  the  defend- 
ant, made  at  the  time  of  the  offence  charged,  may  be  of  great 
weight,  as  characterizing  the  acquaintance  with  an  alleged 
paramour.  Contemporaneous  letters  or  entries  in  a  diary  show- 
ing guilty  familiarity  may  be  sufficient. ^  It  was  a  rule  in  the 
English  ecclesiastical  court  not  to  grant  a  divorce  on  the  mere 
admissions  of  the  alleged  guilty  party.  This  rule  is  not  binding 
upon  the  existing  divorce  court,  though  evidence  of  this  kind 
should  be  received  with  great  circumspection. ^  Still  a  confes- 
sion may  be  received  in  evidence. 

The  subjects  of  alimony  pendente  lite,  counsel  fees,  and  expenses 
may  be  considered  separately.  Alimony  pendente  lite  is  a  crea- 
ture of  the  ecclesiastical  courts  in  England.  The  power  of  the 
courts  there  is  now  vested  in  the  court  of  Divorce  and  Matrimo- 
nial Causes."^  (a).  It  is  a  reasonable  construction,  as  has  been 
seen,  that  when  the  power  of  divorce  is  vested  in  a  court,  the 
general  principles  of  the  ecclesiastical  law  follow,  and  attach 
themselves  to  the  new  jurisdiction.^  Questions  concerning  ali- 
mony arise  both  in  cases  of  divorce  from  the  bonds  of  matri- 
mony (a  vinculo),  and  in  cases  of  judicial  separation  (a  mensa 
et  thoro).  It  will  be  convenient  to  consider  the  subject  as 
applicable  to  both  at  the  same  time. 

The  following  are  the  rules  of  law  governing  this  subject :  — 

Rule  1. —  The  true  mode  of  ascertaining  the  principles  gov- 
erning alimony  is  to  examine  the  rules  prevailing  in  the  eccle- 
siastical courts  of  England.  We  cannot  inquire  whether  these 
are  antiquated  or  inelastic.  The  precedents  must  be  followed 
as  they  exist.  Whether  they  should  be  expanded  or  not  is  a 
question  for  the  legislature. 

1  Mitcliell  V.  Mitchell,  61  N.  Y.  398,  as  the  wife  was  a  woman  of  strong  passions 
and  cases  cited  (p.  403),  illustrating  the  and  flighty  disposition,  it  would  not,  nnder 
general  rule.  the  special  circumstances,  draw  the  usual 

2  Loveden  v.  Loveden,  2  Hagg.  Consist,  inferences  of  adultery  from  the  statement 
K-  1.  in  her  diary  of  exchanged  kisses  and  other 

3  Williams  v.  Williams,   L.  R.  1  P.  &     endearments. 

D.  29  ;  Robinson  v.  Robinson,  1  Sw.  &  T.  *  20  &  21  Yict.  c.  85. 

362,  393.      In  this   case   the   confessions  ^  Brinkley  v.  Brinkley,  50  N.  Y.  184, 

were  in  a  diary  ;  and  the  court  held  that     190  ;  Griffin  v.  Griffin,  47  N.  Y.  134. 


{a)  This  court  was  superseded  by  the     created  by  the  Judicature  Act  of  1873,  36 
Probate  Divorce  and  Admiralty  Division     &  37  Yict.  c.  66. 
of  the  High  Court  of  Justice,  which  was 


HUSBAND   AND   WIFE.  165 

Eule  2.  —  Alimony  pendente  lite  is  allowed  upon  the  general 
ground  that  otherwise  during  the  action  the  wife  would  have  no 
adequate  means  of  support.  Her  common-law  remedy  (hereafter 
considered)  to  incur  bills  with  tradesmen  on  the  husband's 
credit,  is  hampered  if  not  suspended.  If  away  from  home  when 
the  action  is  brought,  she  cannot  properly  return;  if  at  home, 
cohabitation  is  suspended.  She  needs  immediate  funds,  and 
if  circumstances  warrant,  access  to  a  court  to  increase  her  allow- 
ance. Adequate  support  and  efficiency  in  supplying  it  are  the 
guiding  principles,  (a) 

Rule  3.  —  It  follows  that  if  the  wife  has  sufficient  means 
from  other  sources,  whether  from  her  own  estate  or  not,  she  has 
no  standing  in  court  to  make  the  application  for  alimony  pen- 
dente lite. 

Rule  4.  —  The  allowance  made  is  not  so  large  as  permanent 
alimony.  1  The  principle  is  to  give  the  wife  enough  to  live  in 
decent  retirement.  Her  reputation  being  under  a  cloud,  she 
should  not  seek  publicity. 

Rule  5.  —  The  judge  is  said  to  have  a  discretion  in  awarding 
alimony.  This  means  a  discretion  governed  by  rules  and  prece- 
dents, and  if  the  judge  does  not  follow  them,  the  decision  may 
be  reviewed  on  appeal.  ^ 

Rule  6.  —  Still,  the  court  is  not  to  proceed  in  a  niggardly 
and  parsimonious  manner.  She  should  have  sufficient  to  enable 
her  to  live  with  decency  and  dignity.  She  is  still  icife,  and 
ought  to  be  treated  accordingly  until,  by  the  judgment  of  the 
court,  she  is  decreed  to  be  an  outcast  from  the  family. 

Rule  7.  —  There  is  a  distinction  between  the  wife  as  plaintiff 
and  as  defendant  in  respect  to  this  allowance.  If  the  wife  be 
defendant,  she  must  defend  herself  against  the  charges  in  the 
bill  or  complaint,  or  must  disclose  the  nature  of  her  defence 
before  she  will  be  awarded  alimony.^  (/>) 

1  Lawreuce  v.  Lawrence,  3  Paige,  267.  ^  Lewis  v.    Lewis,   3  Johns.   Ch.  519  ; 

2  Leslie  v.  Leslie,  6  Abb.  Pr.  N.  s.  Os^'ood  v.  Osojood,  2  Paige,  621  ;  Williams 
193.  V.  Williams,  3  Barb.  Cli.  628. 


(a)  Alimony  may  be  awarded  after  a  not  be  made  to  defray  expenses  already 

decree    of  divorce   pending   the   determi-  incurred.      McCarthy    v.    McCarthy,    137 

nation    of    an    appeal    from    the    decree.  N.  Y.  500. 

McBride  v.  McBride,  119  N.  Y.  519.    But  {h)  Pettee  v.  Pettee,  45  N.  Y.  St.  R. 

see  Kamp  v.  Kamp,   59  N.  Y.  212  ;  Win-  549.     In  an  action  of  divorce  brought  by 

ton  V.  Wiuton,  31  Hun,  290.  the  wife  where  all  the  charges  of  adultery 

Under  §  1769,  of  the   N.   Y.  Code  of  are  made  on  information  and  belief,  and 

Civil  Procedure,  authorizing  the  court  to  are  positively  denied   by   the  defendant, 

award  such  sums  as  alimony  as  may  be  alimony  will  not  be  granted.      Moriarty 

necessary  to  enable  the  wife  to  carry  on  v.  Moriarty,  32  N.  Y.  St.  R.  115. 
or  defend  the  action,  an   allowance   may 


1(36  THE   LAW  OF   PERSONS. 

Rule  8. If  the  requisite  case  is  made  out,  tlie  allowance 

will  be  made,  even  though  the  husband  be  a  poor  man.  i  And 
if  the  circumstances  require  it,  the  payment  may  be  ordered  to 
be  made  from  daily  earnings. ^ 

Rule  9.  —  The  amount  of  the  allowance  in  England  is  f re- 
(jucntly  one-fifth  of  the  income,  though  when  the  husband  is 
aftluent,  no  more  will  be  allowed  than  is  sufficient  for  the  wife's 

uses.^ 

It  is  common  in  these  cases  to  make  an  allowance  to  the  wife 
for  counsel  fees  and  expenses  of  the  litigation.  This  allowance 
proceeds  upon  different  principles  from  that  of  alimony  pendente 
lite.  The  amount  of  "  suit  money  "  must  depend  to  some  extent 
upon  the  breadth  and  severity  of  the  litigation.  It  is  laid  down 
by  some  writers  that  the  wife  should  receive  money  enough  from 
the  husband's  estate  to  be  placed  upon  an  equality  with  him  as  to 
the  means  of  prosecuting  her  case.* 

While  this  rule  is  abstractly  just,  there  may  be  serious  doubt 
whether  its  tendency  would  not  be  to  promote  useless  litigation. 
The  wisest  course  would  seem  to  be  to  leave  each  case  to  the  dis- 
cretion of  the  court,  depending  upon  its  special  circumstances  and 
the  result  of  the  judicial  precedents.  It  is  a  rule  not  to  make 
this  allowance  where  the  wife  has  sufficient  means  of  defence  from 
other  sources.  This  is  not  a  mere  matter  of  discretion,  but  a  rule 
of  law.^  Authorities  showing  the  amount  of  allowance  usual  in 
such  cases  may  be  found  in  the  note.^  Counsel  fees  may  be 
allowed  at  various  stages  in  the  progress  of  the  action  or  at  its 
conclusion.  On  a  second  application  the  court  w^ould  require 
evidence  that  the  amount  of  the  first  allowance  had  been  applied 
to  the  purpose  for  which  it  was  made. 

1  Purcell     V.    rurcell,     3     Edw.     Ch.  husband  was  a  man  of  large  means  and  had 

194.  an  abundant  income.     There  may  be  spe- 

■^  Kirby  v.  Kirby,  1  Paige,  261.  cial  reasons  for  making  the  amount  larger 

3  Accordingly,  where  the  husband's  in-  than  usual,  as  where  the  wife's  health  was 

come  was  equivalent  to  $40,000  joeramiMHi,  endangered,   and  provision  was  made  by 

the  court  stopped  with  $5,000  ^er  «?!««?«.  the    court    for    enabling    her    to     travel 

Edwards  v.  Edwards,  17  L.  T.  N.  s.  584.  with  a  view  to   recuperation.     Lynde  v. 

The  specific  rate  of  twenty  per  cent  does  Lynde,   4  Sandf.  Ch.  373  ;   s.  c.  2  Barb, 

not  seem  to  prevail  in  this  country.     The  Ch.  72. 

allowance    in    one   New   York    case   was  *  Bishop    on    Marriage,    Divorce,    and 

S:1,000  per  annum.     Forrest  v.  Forrest,  5  Separation,  vol.  II.  §  976. 

Bosw.  672,  676,    677.      In   another   case  5  Collins  v.  Collins,  80  N.  Y.  1;  Beadle- 

S30  per  week  was  allowed.     Leslie  v.  Les-  ston  v.  Beadleston,  103  N.  Y.  402. 

lie,  6  Abb.  Pr.  N.  s.  193.     Again,  there  ^  Forrest   v.    Forrest,     5    Bosw.    672  ; 

was  an  allowance  of  $35  per  week,  which.  North  v.  North,  1  Barb.  Ch.  241  ;  Griffin 

under  the  circumstances,  was  not  deemed  v.  Griffin,  47  N.  Y.  134  ;  New  York  Code 

excessive.     De  Llamosas  v.  De  Llamosas,  of  Civ.  Pro.  §  1769. 
62  N.  Y.  618.     In  each  of  these  cases  the 


HUSBAND   AND    WIFE.  167 

III.  Defences.  —  These  may  be  grouped  into  two  general  classes. 
First,  those  which  deny  the  charge  altogether ;  second,  those  which 
by  implication  admit  it,  and  at  the  same  time  deny  that  the  plaintiff 
is  entitled  to  any  relief  by  reason  of  his  conduct.  Such  defences 
are  misconduct  on  tlie  plaintiff's  part,  condonation,  procurement, 
collusion  or  connivance,  and  lack  of  diligence  in  prosecution. 

(1)  Denial.  —  If  the  charge  be  denied,  an  issue  of  fact  is  pre- 
sented to  be  tried  by  a  judge  alone  or  by  a  judge  and  jury,  as  the 
local  practice  may  require.^  The  local  books  of  practice  should 
be  examined  for  the  details  of  the  subject.  Under  this  issue 
merely,  if  the  plaintiff  proves  his  charges,  the  divorce  is  obtained  ; 
if  not,  the  case  is  dismissed. 

(2)  Recrimination.  —  This  defence  consists  of  a  countercharge 
by  the  defendant  against  the  plaintiff,  and  is  in  the  nature  of  a 
cross  action,  (a)  The  recriminatory  charge  should  be  set  forth 
with  the  same  particularity  as  if  it  were  an  original  cause  of  action.^ 
The  defendant  may  make  use  of  a  recriminatory  charge  by  supple- 
mental answer,  even  though  the  act  was  committed  after  the  action 
was  commenced.  ^  (h)  Should  the  defendant  prove  his  case  and 
the  plaintiff  fail,  the  defendant  will  have  a  divorce  from  the  plain- 
tiff. Should  each  party  establish  his  case,  no  divorce  will  be 
granted.* 

(3)  Condonation.  —  This  is  a  technical  expression  meaning  con- 
ditional forgiveness.  The  condition  is,  that  the  offence  is  not  to 
be  repeated.  Should  it  be,  the  condoned  offence  is  revived,  even 
though  the  new  offence  be  committed  beyond  the  jurisdiction  of 
the  court.^     It  has  been  questioned  whether  a  subsequent  act  of 

1  In  New  York  it  is  tried  by  a  jury,  The  husband  by  violence  had  driven  her 
unless  the  parties  consent  to  a  reference  into  a  life  of  shame.  Coleman  v.  Coleman, 
or  a  trial  by  the  judge  alone.  Code  Civ.  L.  R.  1  P.  &  D.  81.  It  should  be  ob- 
Pro.  §§  1012,  1757.  A  referee  may  be  served,  however,  that  there  is  a  certain 
appointed  to  hear  and  determine  the  whole  discretion  given  to  the  divorce  court  by  20 
issue.  It  is  not,  however,  enough  that  &  21  Vict.  c.  85,  §  31.  This  is  a  regu- 
the  parties  select  the  referee;  his  appoint-  lated  discretion,  and  not  a  free  option, 
ment  must  be  sanctioned  by  the  court.  Morgan  v.  Morgan,  L.  R.  1  P.  &  D.  644. 

2  Morrell  v.  Morrell,  3  Barb.  236.  The  cases  are  very  few  in  which  the  court 

3  Smith  V.  Smith,  4  Paige,  432.  would  visit  with  the  penalty  of  divorce  a 

4  In  a  recent  English  case  of  very  ag-  guilty  wife  whose  husband  is  also  guilty  of 
gravated  misconduct  on  the  part  of  the  adultery.  Barnes  v.  Barnes,  L.  R.  1  P.  & 
husband,   a  divorce  was  granted   to   the  D.  .572 

wife  under  the  rules  now  prevailing  there,  ^  Per  Waiavoktu,  Chancellor,  in  John- 

though  she  had  been  guilty  of  adultery,     son  i'.  Johnson,  4  Paige,  460,  471. 

(a)  N.  Y.   Code  of  Civ.  Pro.   §  1770  ;  elty  was  refused  a  divorce  sought  on  the 

Bleck  ■!;.  Bleck,   27  Hun,  296;  Van  Ben-  groundof  adultery, though  the  adultery  was 

thuysen  v.  Van  Benthuysen,  15  Civ.  Pro.  established.     Pease  v.  Pease,  72  AVis.  136. 

R.  234.    Under  a  statute  making  cruelty  as  See  also  Handy  v.  Handy,  124  Jlass.  394  ; 

well  as  adultery  a  ground  for  a  divorce,  a  Tillison  v.  Tillison,  63  Vt.  411. 
husband  proved  to  have  been  guilty  of  cru-  {h)  Blanc  v.  Blanc,  67  Hun,  384. 


158  THE   LAW    OF   TEKSONS. 

cruelty  would  revive  a  condoned  cause  of  action  for  adultery.  It 
was  held  in  the  English  ecclesiastical  courts  that  it  would.  How= 
ever,  it  is  to  be  noted,  that  in  those  courts,  both  adultery  and 
cruelty  were  only  grounds  for  a  partial  divorce,  and  so,  legally 
speaking,  the  two  causes  of  action  were  of  the  same  grade.  But 
in  a  State  where  adultery  is  a  ground  for  dissolution,  and  cruelty 
only  for  a  separation,  it  has  been  thought  that  the  English  rule 
should  not  be  followed. ^  Still,  the  soundness  of  this  theory  is 
doubtful,  since  "  condonation  "  is  a  word  wholly  derived  from  the 
ecclesiastical  courts,  and  its  meaning  there  certainly  is  forgiveness 
upon  condition  that  there  shall  neither  be  adultery  nor  cruelty .^  (a) 
It  has  also  been  said,  that  a  condoned  act  of  adultery  may  be  revived 
by  subsequent  improprieties  short  of,  but  tending  to,  adultery .^ 

To  constitute  a  condonation,  there  must  be  full  knowledge  of 
the  facts.  A  condoning  husband  must  thoroughly  believe  in  his 
wife's  adultery.^  Again,  the  acts  of  forgiveness  must  be  followed 
up  by  full  re-instatement  of  the  offender  to  his  or  her  former 
position.^  Mere  words  of  forgiveness,  however  strong,  amount 
only  to  "  imperfect  "  condonation.^ 

Condonation  once  proved  is  a  blotting  out  of  the  offence  imputed 
so  as  to  restore  the  offending  party  to  the  same  position  as  before.''' 
Accordingly,  it  has  been  held  in  some  cases  that  if  the  other  party 
should  subsequently  commit  the  offence,  the  party  condoned  could 
have  a  divorce.^  It  would  scarcely  be  just  to  establish  such  a 
rule  in  a  positive  form.  A  wife  who  had  forgiven  her  husband  in 
a  known  act  of  adultery  might,  by  his  example,  be  more  easily  led 
astray.  The  English  rule  seems  more  consonant  with  reason. 
This  is  to  consider  all  the  circumstances  in  determining  whether 
the  condonee  shall  be  allowed  to  maintain  the  action.^ 

Regularly  speaking,  condonation  should  be  set  up  in  the  plead- 
ings. The  English  court  has  held  that  if  proved  at  the  hearing  it 
will  be  noticed  by  the  court  though  not  specially  pleaded.^*^  In  a 
recent  English  case  it  is  said  that  condonation  by  a  husband  of  a 

1  Johnson  v.  Johnson,   4    Pais^e,    460,  ^  Keats  v.  Keats,  1  Sw.  &  T.  334. 

s.  c.  14  Wend.   637  ;   Burr  v.   Burr,    10  ^  Peacock  v.  Peacock,  Id.  183. 

Paige,  20.  '  Keats  ii.  Keats,  supra,  p.  356. 

^  Dent  V.  Dent,  4  Sw.  &  T.  105.  ^  Morrell  v.  Morrell,  1  Barb.  318. 

»  Winscom  v.   Winscom,    3  Sw.  &  T.  ^  story  v.   Story,   L.  R.  12  P.  D.  196. 

380.  See  also  Rose  v.  Rose,  L.  R.  8  P.  D.  98. 

*  Ellis  V.  Ellis,  4  Sw.  &  T.  154,  157.  ^^  Curtis  v.  Curtis,  4  Sw.  &  T.  234. 

(a)  See  Moore  v.  Moore  [1892],  P.  382.  She   then  resumed  cohabitation  with  the 

In  this  case  the  wife  had  obtained  a  decree  respondent,  her  former  husband,  but  he 

nisi  in  a  suit  for  divorce,  and  believing  that  being  guilty  of  cruelty,  she  petitioned  to 

the  marriage  was  dissolved,  went  through  make    the    decree    absolute,    which    was 

the  form  of  marriage  with  another  man,  granted  by  the  court.     See  also  Timerson 

with  whom  she  cohabited  until  his  death,  r.  Timerson,  2  How.  Pr.  N.  s.  526. 


HUSBAND   AND   WIFE.  1G9 

wife's  adultery  is  a  fact  of  every-day  occurrence,  as  the  records  of 
tiie  divorce  court  abundantly  show.^  Condonation  may  be  proved 
either  by  express  words  of  forgiveness  or  it  may  be  inferred  from 
acts.  Cohabitation  may  lead  to  the  inference  of  condonation, 
but  the  inference  may  be  repelled  by  other  circumstances.^  (a) 
The  inference  is  more  readily  made  against  a  husband  than  against 
a  wife,  since  the  latter  is  more  often  in  a  state  of  dependence  and 
without  perfect  freedom  to  act.^  (b) 

These  elements  should  always  be  present  in  every  case  of  con- 
donation :  Full  knowledge  of  the  facts,  belief  in  guilt,  pardon,  and 
re-instatement  of  the  party  forgiven,  in  his  former  position.  Con- 
donation by  a  husband  is  no  bar  to  a  claim  for  damages  by  him 
against  an  adulterer.'^ 

(4)  Procurement.  —  There  is  a  general  resemblance  between 
procurement,  connivance,  and  collusion  as  defences  in  the  fact 
that  they  assume  conduct  on  the  part  of  a  complainant  contribut- 
ing or  leading  up  to  the  commission  of  the  offence.  Procurement 
implies  active  participation  in  its  commission,  and  intentional  en- 
couragement of  licentious  conduct  or  privity  with  the  adulterer. 
Connivance  is  passive,  —  the  offence  is  winked  at.  Collusion  has 
more  special  reference  to  the  object  sought  to  be  attained  by  the 
acts  of  the  complainant,  —  viz.,  aid  in  obtaining  a  divorce.  Con- 
nivance may  be  the  act  of  one  party  ;  collusion  is  the  act  of  two 
or  more  parties  to  deceive  the  court.^ 

(5)  Connivance.  —  This  defence  is  proved  either  by  wilful  neg- 
lect on  the  husband's  part  in  protecting  the  wife  from  the  solici- 
tations of  an  adulterer,  or  extreme  negligence  in  permitting  such 
an  intimacy  as  is  likely  to  lead  to  adulterous  intercourse.^  Mere 
imprudence  on  the  husband's  part  is  not  connivance  ;  and  in  deter- 
mining whether  it  exists,  the  honesty  of  the  husband's  intention 
rather  than  the  wisdom  of  his  conduct  is  to  be  regarded.''  Still, 
'"  toleration,"  or  passive  sufferance  of  adultery  for  a  length  of  time 
is  a  waiver  of  legal  remedy.^  If  a  husband  consents  to  adulter}' 
with  A.  and  it  is  committed  with  B.  the  husband  can  have  no 
relief.  The  court  requires  two  things, — that  a  man  shall  come 
with  pure  hands  himself,  and  shall  have  exacted  a  due  purity  on 

1  Baker  v.  Baker,  L.  R.  5  P.  D.  142,  6  Gilpin  v.  Gilpin,  3  Hagg.  Eco.  150. 
150.  "  Hoar  v.  Hoar,  3  Hagg.  Ecc.  137  ;  Itix 

2  Whispell  V.  Whispell,  4  Barb.  217.         v.  Kix,  Id.  74. 

3  Wood  V.  Wood,  2  Paige,  108.  8  Crewe  v.   Crewe,  3  Hagg.  Ecc.  123  ; 
*  Pomero  v.    Pomero,   L.   R.  10  P.  D.     Jloorsom  v.   Moorsoni,   Id.   87  ;   Gipps  v. 

174.  Gipps,   3   Sw.  &  T.   116  ;   s.  c.  11  H.  L. 

^  Crewe  v.  Crewe,  3  Hagg.  Ecc.  130  n.       Cases,  1. 

(a)  Hall  V.  Hall,  60  L.  J.  P.  73.  (b)  Shackletou  v.  Sliackleton,  48  N.  J. 

Eq.  364. 


170  THE   LAW   OF   PEKSONS. 

the  part  of  liis  wife  ;  and  if  he  has  relaxed  as  to  one  man,  he  has 
no  right  to  couiphiiu  of  another.^ 

(6)  Collmion.  —  It  has  been  said  that  this  is  extremely  difficult 
to  define.  The  leading  element  is  an  attempt  to  deceive  the 
court  by  committing  the  offence,  not  from  ordinary  motives,  but 
for  the  special  purpose  of  obtaining  a  divorce.  In  a  recent  case 
the  husband  promised  the  wife  to  commit  the  offence  for  the 
purpose  of  a  divorce,  and  instructed  the  wife  how  to  detect  him  ; 
and  she,  acting  accordingly,  obtained  the  evidence.  It  was  held 
to  be  a  clear  case  of  collusion.^  (a)  Collusion  in  committing  the 
offence  must  be  distinguished  from  collusion  in  obtaining  the  de- 
cree of  divorce.  The  latter  form  might  exist  though  no  offence 
had  ever  been  committed. 

There  is  an  English  statute  ^  which  creates  a  new  bar  to  a  di- 
vorce,—  viz.,  neglect  or  misconduct  on  the  part  of  the  husband 
conducing  to  the  wife's  adultery.  This  is  held  to  be  something 
that  might  not  amount  to  connivance,  and  \Qt  might  lead  to  a 
wife's  lapse  from  virtue.  It  is  applied  to  acts  preceding  her  first 
fall  from  virtue.*  (h) 

(7)  Delay  in  prosecution,  including  the  statute  of  limitations.  — 
Delay  in  prosecuting  may  be  so  great  as  to  lead  to  the  inference 
that  the  husband  or  wife  is  insensible  to  the  wrong  done,  and 
may  practically  amount  to  condonation.  The  present  statute  law 
of  England  makes  an  "  unreasonable  delay  "  a  bar  to  an  action.^ 
In  determining  what  is  "  unreasonable  delay  "  the  court  will  con- 
sider such  facts  as  the  poverty  of  the  petitioner,^  unwillingness 
on  the  part  of  the  wife  to  subject  her  mother  to  the  scandal  of 
a  public  exposure,  and  a  consequent  forbearance  to  take  proceed- 
ings until  her  death,"  and  other  matters  of  tlie  same  general  kind 
by  way  of  excuse.^  (c)     Still,  an  unexplained  delay  of  two  years 

1  Lovering  v.  Loveriiig,  3  Hagg.  Ecc.  6  Eatclift"  v.  Ratcliff,  1  Sw.  &  T.  467, 
85,  87.                                                                   473  ;  Wilson  v.  Wilson,  L.  R.  2  P.   &  D. 

2  Todd  V.  Todd,  L.  R.  1  P.  &  D.  121, 124.     435. 

8  20  &  21  Vict.  c.  85,  §  31.  ^  Newman  v.   Newman,  L.  R.  2  P.  & 

4  St.  Paul  V.  St.  Paul,  L.  R.  1  P.  &  D.     D.  57. 

739  ;  Baylis  v.  Baylis,  Id.  395.    See  Haw-  8  Harrison  v.  Harrison,  3  Sw.  &T.  362; 

kins  V.  Hawkins,  L.  R.  10  P.  D.  177.  Pitt  v.  Pitt,  33  L.  T.  N.  s.  136  ;  Mason  v. 

5  20  &  21  Vict.  c.  85,  §  31.  Mason,  L.  R.  8  P.  D.  21. 

(«)  An  agreement  between  the  parties  T.  R.  257  ;  Starbuck  v.  Starbuck,    61   L. 

to   a  divorce  suit  to   withhold   from  the  T.  R.  876. 

court  pertinent  and  material  facts  which  (c)  In  Newman  v.  Newman,  the  court 

might  have  been  adduced  in  support  of  a  held  that  the  delay  of  eighteen  years  on 

counter  charge,  is  collusive,  even  though  the  part  of  the  wife,  out  of  consideration 

the  facts  suppressed  might  not  be  sufficient  for  her  mother's  feelings,  was  unreasonable; 

to  establish  the  countei'  charge.    Butler  v.  but  granted  the  divorce  in  the  exercise  of 

Butler,  L.  R.  15  P.  D.  66.  the  discretion  given  by  the  statute.     See 

b)  See  also  Lander   v.  Lander,  63  L.  also  Beauclerk  v.  Beauclerk,  60  L.  J.  P.  20. 


HUSBAND    AND   WIFE.  171 

after  full  knowledge  of  the  facts  has  been  held  to  be  unreason- 
able, and  sufficient  ground  for  dismissal  of  the  case.^  This  matter 
is  re2:ulated  in  some  of  the  American  States  by  statute.  The 
substance  of  tliem  is,  that  the  party  must  sue  within  a  specified 
time  after  discovery  of  the  offence.^ 

IV.  Effect  of  the  Divorce. —  (1)  The  supjjort  of  the  ivife.  —  If 
the  wife  he  found  guilty,  no  allowance  can  be  made  to  her  from  the 
husband's  estate  for  her  future  support.  If  she  be  innocent,  an 
allowance  is  regularly,  and  as  a  matter  of  course,  made  from  the 
husband's  estate.  This  is  called  alimony,  or  permanent  alimony, 
to  distinguish  it  from  alimony  j)endente  lite. 

Alimony  is  a  periodical  allowance  to  the  wife  from  the  hus- 
band's estate.  The  amount  is  variable,  depending  upon  the  hus- 
band's means,  his  conduct  towards  the  wife,  the  conduct  of  the 
wife,  and  the  claims  of  children.  It  originated  in  the  ecclesias- 
tical courts,  and  was  applied  there  to  cases  of  limited  divorce  or 
judicial  separation.  It  has  been  extended  to  dissolution  for  the 
husband's  fault.  In  other  words,  alimony  granted  to  a  wife  on 
dissolution  of  the  marriage  was  derived  by  analogy  from  the  rules 
]H-evailing  in  the  law  of  limited  divorce,  while  alimony  in  cases 
of  limited  divorce  was  in  no  respect  derived  from  the  law  appli- 
cable to  cases  of  dissolution.  Accordingly,  when  the  divorce 
court  in  England  was  enabled  by  statutes  in  cases  of  dissolution 
to  make  a  "  proper  provision "  in  her  favor,  resort  was  had  to 
the  rules  of  the  ecclesiastical  court  in  cases  of  separation  to 
determine  what  that  provision  should  be.^ 

The  leading  rules  as  to  permanent  alimony  are  these  :  — 

Rule  1.  —  Tbe  allowance  is  made  while  the  wife  remains  single 
and  chaste  {dum  sola  et  casta  vixer if),  and  no  longer.^ 

1  Nicholson  v.  Nicholson,  L.  R.  3  P.  &  the  action.  Valleau  v.  Valleau,  6  Paige, 
D.  53.  207. 

2  See  in  New  York  Code  of  Civ.  Pro.  ^  Sidney  v.  Sidney,  4  S\v.  &  T.  178. 

§  1758.      The   time   fixed   is   within    five  *  This  rule  differs  from  the  New  York 

years  after  the  discovery  by  the  plaintiff  theory  holding  that  the  wife,  after  the  dis- 

of  the  offence  charged.     If  a  wife  lives  in  solution,  is  under  no  obligation,  as  far  as 

open  and  notorious  adultery  with  a  para-  alimony  is  concerned,   to  remain   chaste, 

mour,    the  husband's  right  to  a   divorce  Forrest  v.  Forrest,   3  Bosw.   661.      It  is  a 

will  be  barred  at   the  expiration   of  five  little  difficult  to  see  how  this  New  York 

years,  though  the  adultery  was  continued  case  can  be  reconciled  with  equitable  prin- 

down  to  the  time  of  the  commencement  of  ciples,   as  a  claimant  for  equitable  relief 

must  come  into  court  with  pure  hands,  (a) 

(a)  The  doctrine  was  reaffirmed  by  the  The  court  in  each  case  determines  what  is 

same  court  in  Forrest  v.  Forrest,  8  Bosw.  reasonable,  having  regard  to  all  the  cir- 

640.     See  also  Cole  v.  Cole,  142  111.  19.  cumstances.      Wood  v.   Wood  [1891],   P. 

There  is  no  absolute  rule  in  the  English  272  ;  Lander  v.  Lander,   Id.  161 ;  Wellei 

courts  that  the  dum  sola  et  casta  clause  v.  Y>''eller,  63  L.  T.  R.  263. 
shall  be  inserted  in  the  decree  for  alimony. 


172  THE    LAW   OF    PEKSONS. 

Rule  2.  —  The  wife's  ill-conduct  before  the  decree  may  be  taken 
into  account  in  diminishing  the  allowance,  and  will  perhaps  wholly 
do  away  with  it. 

Xiulc  3.  —  The  right  to  alimony  is  a  question  for  the  courts  not 
for  a  jury. 

j{,ule  4.  —  The  court  has  no  right  where  dower  is  allowed  to  a 
divorced  wife  to  require  her  to  relinquish  her  dower  as  a  condi- 
tion to  granting  alimony. ^  {a) 

Rule  5.  —  Alimony  can  only  be  granted  to  a  wife,  not  to  a 
mistress.^ 

Rule  6.  —  The  amount  of  alimony  is  about  one  third  of  the 
husband's  income  until  a  full  competence  is  awarded.  It  may  in 
special  circumstances  amount  to  as  much  as  ^^10,000  per  year,  as 
where  the  husband  is  wealthy  and  has  treated  the  wife  with  great 
brutality.^  This  amount  was  calculated  upon  a  fixed  income. 
Where  the  income  is  fluctuating  (as  in  the  case  of  a  husband  who 
is  an  artist),  an  inquiry  into  the  average  income  for  several  years 
past  may  be  had,  the  object  being  to  ascertain  present  income.* 
The  allowance  may  be  made  to  commence  at  the  date  of  the 
action  or  of  the  decree.^  (5) 

Rule  7.  —  The  order  may  direct  security  for  payment  to  be 
made  a  lien  upon  the  husband's  real  estate.^  It  would  be  a  con- 
tempt of  court  not  to  give  security,  when  so  directed.  The  court 
in  England  may  sequester  the  husband's  income,  even  though  it 
be  that  of  a  retired  officer  in  the  navy."  A  court  of  equity  may 
also  grant  an  injunction  and  appoint  a  receiver  to  protect  the 
wife.^  A  bill  in  equity  may  be  brought  for  arrears  of  alimony 
after  the  wife's  deatli.^  (c) 

1  Forrest  v.  Forrest,  6  Duer,  102,  150-  *  Williams  v.  Williams,  L.  R.  1  P.  & 
154.  D.  370. 

2  See  Donnelly  v.  Donnelly,  8  B.  Mon.  ^  Forrest  v.  Forrest,  6  Duer,  102,  148- 
113.  The  exact    ruling  in  this  case  ap-  150. 

plied  to  dower,  but  the  principle  seems  to  ^  Forrest  v.  Forrest,  supra. 

be  the  same.  ''  Dent  v.  Dent,   L.  R.  1  P.  &  D.  366; 

3  Burr  V.  Burr,   10  Paige,  20 ;   s.  c.  7     Clinton  v.  Clinton,  Id.  215. 

Hill,  207.  8  Sidney  v.  Sidney,  17  L.  T.  n.  s.  9. 

9  Stones  V.  Cooke,  3  L.  J.  N.  s.  Ch.  225. 


(a)  A  separation  agreement  providing  which  may  be  made  separately,  or  acconi- 

for  the  periodical  payment  of  an  allowance  panied  with  alimony.      The  basis  of  this 

to  the  wife  through  a  trustee,   is  not  af-  division    is   largely   a   matter   of  judicial 

fected  by  a  subsequent  decree  for  divorce  discretion.      For  a  full  discussion  of  the 

and  alimony  granted  the  wife.      Galusha  subject,  see  Bishop  on  Marriage,  Divorce, 

V.  Galusha,"  116  N.  Y.  635  ;  Clark  v.  Fos-  and  Separation,  vol.  II.  §§  1115-1139. 

dicK,  118  N.  Y.  7.  (c)   A  court  of  equity  will  not  lend  its 

(6)    In   several    States    of  the    Union  aid  to  compel  the  appropriation  of  alimony 

statutes  exist  which  provide  for  a  division  awarded  a  wife  in  a  decree  of  divorce  to 

of  the  husband's  property  upon  a  divorce,  the  payment  of  a  debt  contracted  by  her, 


HUSBAND    AND    WIFE.  173 

Rule  8.  —  Alimony  is  in  the  nature  of  a  wife's  separate 
estate,  and  lier  attorney  may  have  a  lien  u})on  the  fund  for 
costs. ^ 

Rule  9.  —  Alimony  is  obtained  by  motion.  This  motion  can  be 
made  in  Eng'land  after  the  final  decree  of  divorce.^  (a) 

(2)  Legitimacy  of  children.  —  Of  course,  no  question  can  be 
raised  upon  this  point  except  in  case  of  the  divorce  of  the  wife 
for  her  adultery.  Nor  can  it  be  presented  in  her  case  except  as 
to  children  unborn  when  the  offence  is  cliarged  to  have  been  com- 
mitted. It  is  a  rule  of  court  in  New  York  that  all  questions  as  to 
legitimacy  of  children  must  be  set  up  in  the  complaint  and  tried 
as  separate  issues.  The  court  has  power  to  decide  upon  the 
legitimacy  of  the  children  begotten  and  born  after  the  commis- 
sion of  the  adultery  charged  in  the  complaint  or  bill.^  The  legit- 
imacy of  all  children  born  before  the  commencement  of  the  action 
will  be  presumed.*  The  rule  laid  down  in  the  famous  Banbury 
Peerage  Case  ^  was  that  marital  intercourse  is  to  be  presumed 
where  personal  access  is  not  disproved,  though  the  presumption 
may  be  relnitted  by  satisfactory  evidence ;  and  unless  the  pre- 
sumption of  access  be  rebutted,  the  husband  must  be  taken  to  be 
the  father  of  the  child,  unless  there  was  a  physical  or  natural 
impossibility  in  the  way  of  paternity.  (6)  This  rule  would  be 
applied  even  though  acts  of  adultery  were  shown.^  While  the 
application  of  this  rule  may  result  in  a  declaration  of  the  legit- 
imacy of  spurious  offspring,  it  is  made  to  rest  on  grounds  of 
public  policy  to  prevent  undue  disturbance  of  the  peace  of  fam- 
ilies, and  the  possible  rejection  from  inheritance  of  legitimate 
heirs.  If,  however,  non-access  of  the  husband  is  shown,  the 
presumption  of  legitimacy  will  be  rebutted."  The  evidence  for 
the  purpose  of  repelling  the  presumption  must  be  "  strong,  dis- 
tinct, satisfactory,  and  conclusive."  ^     It  must  be  such  as  not 

1  Ex  2Mrte  Bremner,  L.  R.  1  P.  &  D.  153.  Also  in  full  in  Nicholas'  Law  of 
254.  Adulterine   Bastardy,    pp.  289-551,    both 

2  Covell  V.  Covell,  L.  R.  2  P.  &  D.  411.     inclusive. 

This  case  would  not  be  followed  in  New  6  Kins;  v.  Luffe,  8  East,  193  ;  Head  v. 

i'ork  as  the  jurisdiction  depends  on  stat-  Head,  1  Sim.  &Stu.  150;  on  appeal,  Turn. 

nte,    and  the  statute  does  not  go  so  far.  &  Russ.  138. 

[vamp  V.  Kamp,  59   N.  Y.  212  ;   Erken-  ^  Cross   v.    Cross,  3  Paige,   139  ;   Van 

l.rach  V.  Erkenbrach,  96  N.  Y.  456.  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  375. 

3  Cross  V.  Cross,  3  Paige,  139.  ^  Per  Lord  LyxDHirRST  in  Morris  ;•. 
*  Id.  '  Davies,  5  CI.  &  F.  Ifi3,  265  ;  Bosvile  v. 
6  Banbury  Peerage  Case,  ISim.  &  Stu.  Atty-Gen'l,  L.  R.  12  P.  D.  177. 

and  actually  subsisting  prior  to  the  date  519  ;    Chamberlain    v.    Chamberlain,    63 

of  the  decree.     Romaine  t?.  Chauncey,  129  Hun,  96. 

N.  Y.  566.  "  {b)  Burnaby  v.  Baillie,  L.  R.  42  Ch.  D. 

(n)  Cf.  McBride  v.  McBride,  119  N.  Y.  282. 


174  THE    LAW   OF   PERSONS. 

to  produce  more  doubt,  but  conviction.^  It  is  a  further  rule  of 
public  policy  that  neither  the  husband  nor  tlie  wife  can  be  allowed 
to  testify  as  witnesses  to  the  non-existence  of  sexual  intercourse.^ 

Where  a  man  marries  a  woman  at  the  time  pregnant,  and  there 
is  no  fraud,  he  admits  that  he  is  the  father.^  In  one  case  of  this 
kind,  where  the  facts  were  peculiarly  strong,  it  was  said  that  the 
presumption  of  paternity  was  next  to  insuperable.  Still,  the  pre- 
sumption is,  after  all,  one  of  fact,  and  capable  of  being  rebutted 
by  clear  evidence.^ 

(3)  Custody  of  children.  —  This  subject  is  for  the  most  part 
now  regulated  by  statute.  By  the  common  law,  the  father  has 
in  general  the  custody  of  the  children.  He  may  vindicate  his 
right  to  them  by  the  writ  of  habeas  corpus.  The  court  or  judge 
may  give  directions  concerning  custody  until  the  child  is  fourteen, 
or,  by  some  decisions,  until  sixteen.^  A  court  of  equity  also  has 
power  to  control  the  custody  of  children  under  the  footing  of  a 
trust.  A  court  of  divorce  has  no  control  as  such.  Its  function  is 
to  decree  a  judicial  separation  between  the  parties,  or  by  statute  to 
dissolve  the  marriage  in  specified  cases.  The  custody  of  children 
is  not  a  regular  incident  to  this  jurisdiction.  Independent  of 
statutes  it  would  seem  that  the  only  remedy  after  a  divorce  would 
be  a  resort  to  a  writ  of  habeas  corpus  or  to  a  proceeding  in  equity. 

As  it  is  convenient  that  the  divorce  court  should  be  able  to 
dispose  of  questions  of  this  kind,  statutes  have  been  passed  in 
England  and  in  this  country  conferring  jurisdiction  upon  specified 
courts.  The  jurisdiction  is  to  be  exercised  either  while  the  action 
is  pending,  or  on  the  final  decree,  or  after  it.^ 

Under  these  statutes  the  court  has  power  to  make  an  order 
for  access  to  the  children  in  favor  of  either  of  the  parties."  (a) 

1  Plowes  V.  Bossey,  2  Drew.  &  Siu.  145,  is  instituted  in  the  Court  for  Divorce  and 
149.  This  case  is  strongly  illustrative  of  Matrimonial  Causes,  and  may  result  in 
the  rule.  declaring   a   marriage    valid.     Shilson    v. 

2  Kingi>.  Sourton,  5  Ad.  &  Ell.  180  ;  Atty-Gen'l,  22  W.  R.  831.  It  cannot  be 
Atchley  v.  Sprigg,  10  Jur.  N.  s.  144.  resorted  to  to  determine  whether  the  peti- 
This  rule  has  been  I'elaxed  in  England  by  tioner  is  heir  to  a  third  person,  Mansel  v. 
a  recent  statute,  permitting  husbands  and  Atty-Gen'l,  L.  R.  2  P.  D.  265. 

wives  to  give  evidence  on  proceedings  in-  *  Gardner  v.   Gardner,    L.   R.   2  App. 

stituted  in  consequence  of  adultery.     32  &  Cas.  723. 

33  Vict.  c.  68.     Li  re  Yearwood's  Trusts,  &  Mallinson  v.  Mallinson,  L.  R.  1  P.  & 

L.  R.  5  Ch.  Div.  545.  D.  221  ;  Ryder  v.  Ryder,  2  Sw.  &  T.  225  ; 

8  Montgomery  v.  Montgomery,  3  Barb.  Queen  v.  Howes,  30  L.  J.  Mag.  Cases,  47. 

Ch.  132.     There  is  now  a  statute  in  Eng-  6  gee  in  England,  20  &  21  Vict.  c.  85, 

land  permitting  a  person  whose  legitimacy  §  35  ;  22  &  23  Vict.  c.  61,  §  4  ;  24  &  25 

may  be  disputed,  to  commence  an  action  to  Vict.  c.  86,  §  9. 

establish  legitimac}^  21  &  22  Vict.  c.  93,  "^  Thompson  v.  Thompson,  2  Sw.  &  T. 

and  22  &  23  Id.  c.  61,  §  7.    The  proceeding  402. 


(a)  Handley  v.  Haudley  [1891],  P.  124. 


HUSBAND    AXD    WIFE.  175 

As  a  father  is  entitled  to  the  custody  of  the  chihh'en  from  the 
mother's  breast,  the  court  will  not  take  away  his  right  without  good 
cause. ^  At  this  stage  of  the  proceedings  the  court  can  only  make 
an  interim  order.^  When  the  mother  makes  an  application  for 
access,  the  court  must  be  satisfied  that  she  is  influenced  by  mater- 
nal affection  and  has  no  indirect  objects  in  view.^  The  whole 
matter  is  left  to  the  divorce  court  with  a  broad  discretion,  and  it 
has  a  wider  power  than  the  common-law  court  has  on  habeas 
corpus.  It  may  pay  attention  to  the  interests  of  the  children, 
and,  regarding  their  health,  may  deny  the  mother  access  to 
them.* 

The  first  English  statute  was  limited  in  its  effect,  and  the  court's 
jurisdiction  was  spent  when  it  made  its  final  decree.  No  further 
order  concerning  custody  could  be  made.^  A  later  statute  gave 
the  court  power  to  make  orders  of  custody  after  final  decree  in  all 
kinds  of  divorce  proceedings,  whether  for  judicial  separation,  nul- 
lity, or  dissolution.^ 

It  is  further  to  be  observed  upon  this  general  subject  that  the 
innocent  party  has  a  primd  facie  right  to  the  custody  of  the 
children,"  and  that  the  court  exercises  a  discretionary  power  ex- 
ceeding that  which  is  exercised  by  courts  of  law  and  equity  in 
the  custody  of  infants.^  If  the  wife  be  unfit  to  have  the  cus- 
tody, even  though  she  be  successful,  the  court  may  award  it  to 
some  third  person.^  The  court  has  regularly  in  view  the  superior 
claims  of  the  husband  to  the  custody  of  his  children,  but  awards 
it  to  the  wife,  when  successful,  on  the  following  general  grounds  : 
First,  When  the  custody  of  the  children  would  be  a  solace  to  her}^ 
Accordingly,  she  could  not  claim  the  custody  of  an  idiot  child  of 
the  age  of  twelve.^^  Second,  Where  the  husband  is  leading  a  noto- 
riously dissolute  life,  the  custody  is  awarded  to  the  wife.^^  Third, 
The  wife  is  the  natural  person  to  have  the  care  of  daughters.  In 
the  case  of  sons,  the  court  may,  in  acting  for  their  welfare,  leave 
them  in  the  custody  of  the  father,  where  he  is  attached  to  them, 

I     1  Cartlidge  v.  Cai-tlidge,  2  S\v.  &  T.  567.  after  judgment,  except  in  the  case  of  judi- 

2  Cubley    v.   Cubley,   30    L.    J.    Mat.  cial  separation. 

Cases,  161.  '^  In  a  special  case,  the  custody  of  one 

^  Codrington  v.  Codrington,  3  Sw.  &  T.  of  them  was  given  to  the  father,  though 

496.  he  was  the  party  complained  of.     Martin 

*  Philip   V.   Philip,  41  L.  J.   Prob.  &  v.  Martin,   29  L,  J.  Prob.  &  Mat.  Cases, 

Mat.  89.  106. 

^  Curtis  V.  Curtis,  1  Sw.  &  T.  192  (de-  «  Marsh  v.  Marsh,  1  Sw.  &  T.  312. 

cision  upon  20  &  21  Vict.  c.  85,  §  85).  ^  Chetwynd  v.  thetwynd,  35  L.  J.  Mat 

6  22  &  23  Vict.  c.  61,  §  4.    Tliis  statute  Cases,  21. 

is  much  more  comprehensive  than  §  1771  ^^  Barnes  v.  Barnes,  L.  Pi.  1  P.  &  D.  463. 

of  the  ISTew  York  Code  of  Civil  Procedure,  "  Cooke  v.  Cooke,  3  Sw.  &  T.  248. 

which  allows   no  application  for  custody  ^-  March  v.  March,  L.  R.  1  P.  &  D.  437. 


27G  THE   LAW   OF   PEKSONS. 

discontinues    immoral   practices,   and   is   engaged    in    profitable 

business. 

In  all  of  these,  and  other  instances,  the  court  has  a  wide  dis- 
cretion, and  must  consider  the  circumstances  of  each  case.^  The 
court  has  power  to  enforce  an  order  for  custody,  if  disobej'ed,  by  a 
writof  scqucstration.2  The  New  York  statute  ^  concerning  custody 
does  not  materially  differ  from  the  English  in  its  general  scope, 
though  it  does  not  allow  an  order  for  custody  in  case  of  dissoli:ti(in 
of  the  marriage  to  be  made  after  final  judgment,  as  the  English 
statute  does.  In  this  respect  it  is  less  liberal  than  the  former  cor- 
responding provision  of  the  New  York  Revised  Statutes.*  The 
discretionary  power  given  by  the  statute  to  the  court  of  original 
jurisdiction  cannot  be  reviewed  by  the  Court  of  Appeals.^ 

(4)  Effect  on  property  rir/hts.  —  It  wnll  be  seen  hereafter  that 
the  rules  of  the  common  law  give  to  the  husband  certain  interests 
in  the  wife's  property,  both  real  and  personal.  The  wife  also  has 
a  right  of  dower  in  her  husband's  land,  and,  in  case  she  survive 
him,  by  force  of  a  statute  of  long  standing  (Statute  of  Distribu- 
tions) takes  an  interest  as  widow  in  the  personal  estate  of  which 
he  dies  intestate.  There  are  frequently  marriage  settlements, 
made  in  view  of  marriage,  providing  both  for  the  husband  and 
wife,  and  even  for  children  of  the  marriage.  An  important  inquiry 
then  arises  as  to  the  effect  of  a  dissolution  of  a  marriage  for 
adultery  upon  the  rights  which  were  acquired,  with  the  expecta- 
tion that  the  marriage  would  continue  unbroken  during  the  lives 
of  both  parties. 

A  divorce  court  would  have  no  inlierent  power  to  disturb  prop- 
erty relations  as  thus  acquired.  A  statute  would  be  requisite 
to  adapt  their  property  interests  to  the  changed  relations  of  the 
parties  growing  out  of  the  divorce.  The  substance  of  the  New 
York  regulations  is,  that  where  the  wife  is  complainant,  she  be- 
comes, upon  a  divorce  in  her  favor,  sole  and  absolute  owner  of 
her  real  estate,  as  well  as  of  goods  and  things  in  action  in  any 
manner  belonging  to  her.  Where  the  husband  is  complainant, 
he  retains  all  the  rights  in  the  wife's  property  which  belonged 
to  him  at  the  time  of  the  decree,  as  though  the  marriage  had  con- 
tinued.    A  guilty  wife  is  declared  not  to  be  entitled  to  dower  in 

1  S5'mington  v.  Symington,  L.  R.  2  Sc.  2  Allen  v.  Allen,  L.  R.  10  P.  D.  187. 

&  Div.  App.  415.  3  Code  of  Civ.  Pro.  §  1771. 

By   36   &  37   Vict.  c.  12  (The  Infants'  *  Erkenbrach  v.  Erkenbrach,  96  N.  Y. 

Custody  Act  of  1873)  the  ordinary  courts  456,  consti'uing  the  Revised  Statutes  as  to 

(law  and  equity)  have  increased  power  over  this  point.     See  also  Kerr  v.  Kerr,  9  Daly, 

the  custody  of  children,  proceeding  upon  517. 

principles  of  equity.     In  re  Taylor,  L.  R.  6  Prjce  v.  Price,  55  N.  Y.  656. 

4  Ch.  Div.  157. 


HUSBAND    AMD    WIFE.  177 

her  husband's  estate,  or  any  part  thereof,  nor  to  any  distributive 
share  in  his  personal  estate.^  (a) 

This  legishition  as  to  the  distributive  share  of  a  guilty  wife 
in  the  personal  estate  of  her  husband  is  superfluous  and  unneces- 
sary, since  a  divorced  woman  cannot  be  said  to  be  a  "widow," 
even  though  she  survive  her  former  husband,  and  could  have 
no  "distributive  share,"  whether  innocent  or  guilty.  The 
statute  presents  an  instance  of  that  over-caution  which  may 
mislead,  and  is  sometimes  as  dangerous  as  neglect. ^  It  is 
quite  different  with  dower,  since  a  woman  on  her  marriage 
obtains  an  inchoate  right  of  dower  in  all  lands  of  which  her  hus- 
band becomes  "seized"  of  an  estate  of  inheritance  during  the 
marriage.  Accordingly,  as  to  any  lands  so  owned  by  him  prior 
to  the  divorce,  the  inchoate  right  would  attach,  and  the  divorced 
wife  would,  notwithstanding  her  misconduct,  obtain  a  vested 
right  on  her  survival,  unless  the  statute  prevented  it.^  Of  course 
the  divorced  wife  would  have  no  dower  in  lands  acquired  by  the 
husband  after  the  divorce,  as  she  would  not  be  married  at  the  time 
of  acquisition,  and  this  rule  would  prevail  whether  she  were 
innocent  or  guilty.  The  courts  of  some  other  States  regard  the 
right  of  dower  as  wholly  done  away  with  by  a  divorce,  unless 
it  be  preserved  by  some  special  statutory  rule.^ 

1  New  York  Code  of  Civ.  Pro.  §§  1759,  S\v.  &  T.  174.  Under  the  later  Divorce 
1760,  embodying  the  provisions  formerly  Amendment  Act  (22  &  23  Vict.  c.  61 
contained  in  2  K.  S.  146,  §§  45-48,  which  §  5),  the  court  has  power  to  deal  with 
were  repealed  by  Laws  of  1880,  ch.  245.  all  deeds  whereby  property  is  settled  upon 

2  Estate  of  Ensign,  103  N.  Y.  284,  287.  a  woman  in  her  character  of  wife,  and  to 

3  AVait  V.  Wait,  4  N.  Y.  95,  as  explained  be  paid  to  her  while  she  continues  wife, 
in  Estate  of  Ensign,  103.    N.  Y.  287,  290.  Worsley  v.  Worsley,  L.  R.  1  P.  &  D.  648. 

4  Barber  v.  Rout,  10  Mass.  260;  Hood  v.  The  theory  is,  that  if  a  wife  commits  adul- 
Hood,  110  Mass.  463  ;  Rice  v.  Lumley,  10  tery  and  the  marriage  is  dissolved,  she  is 
Ohio  St.  596  ;  Lamkin  v.  Knapp,  20  Ohio  no  longer  a  wife,  and  the  court  can  within 
St.  454 ;  Barrett  v.  Failing,  111  U.  S.  the  spirit  of  the  statute  deal  with  the 
523.  Legislation  in  England  affecting  (in  settlement.  Owing  to  the  peculiar  Ian- 
case  of  divorce  for  adultery)  marriage  guage  of  the  statute,  it  only  confers  juris- 
settlements  made  in  reference  to  the  con-  diction  where  there  has  been  issue  of  the 
tinuance  of  the  marriage,  is  worthy  of  marriage,  and  they  are  living.  Bird  v. 
notice.  Under  the  first  Divorce  Acts  (20  Bird,  L.  R.  1  P.  D.  231  ;  Corrance  v. 
&  21  Vict.  c.  85),  the  court  had  no  power  Corrance,  L.  R.  1  P.  &  D.  495  (h).  The 
to  alter  a  settlement.    Norris  v.  Norris,  1  principles  on  which  the  court  varies  the 


(a)  A  decree  of  divorce  rendered  by  a  the  statutes  of  the  State  where  it  is  ren- 

court  of  a  sister  State,  having  jurisdiction  dered  be  to  deprive  her  of  dower.     Id.  133 

of  the  subject-matter  and  the  parties,  in  N.  Y.  540. 

an  action  brought  by  the  husband,  will  not  {b)   By  41  &  42  Vict.  c.    19,  §3,  the 

deprive  the  wife  of  her  then  existing  dower  court  may  vary  marriage  settlements  where 

rights  in  New  York,  if  the  divorce  were  there    are   no   children   of  the   marriage, 

for  any  other  cause  than  adultery.     Van  Yglesias  v.  Yglesias,  L.  R.  4  P.  D.  71. 
Cleaf  V.  Burns,  118  N.  Y.  549.    This  is  so         The  court  has  power  to  vary  a  marriage 

even  though  the  effect  of  the  decree  under  settlement  although  the  petitioner  and  re- 

12 


]7S  THE    L.VW    01'    rKKSOXS. 

Thoro  arc  simuo  onj^os  in  tho  l\uulisli  courts  of  0(]uity  holding 
that  a  marriago  sottlomout  ou  gouoral  priiioiiilos  of  law  is  auui- 
liilatod  at  the  luomout  that  tho  luan-iage  ooutract  is  dissolved, 
and  that  oven  an  imiocout  husband  or  other  party  under  it  would 
have  no  further  rights  in  it.^  The  better  opinion,  however, 
is  that  the  husband  or  wife  does  not  lose  the  advantages  of  a 
settlement  in  his  favor  by  the  mere  fact  of  the  dissolution  of  the 
marriage.^ 

(">)  PtiutI  ih'mhiUtit'S. —  It  has  been  thought  advisable  in  some 
States  to  prohibit  the  guilty  party  from  marrying  again  during 
the  life  of  the  other  party.  This  is  the  law  of  New  York.s  The 
provision  is  in  the  natnre  of  a  penalty.  In  the  absence  of  clear 
words  in  a  statute  expressing  the  intent  that  such  a  marriage 
shall  not  be  contracted  beyond  the  limits  of  the  State,  it  will 
be  assumed  by  the  court,  at  least  in  New  York,  that  a  marriage 
within  the  State  only  was  proliibited.  Accordingly,  where  the 
prohibited  party  went  from  Xew  York  to  Connecticut  in  evasion 
of  the  law,  was  married,  and  returned  to  Xew  York,  the  marriage 
was  pronounced  valid,  the  court  finding  in  the  statute  no  clear 
expression  of  the  will  of  the  legislature  that  the  marriage 
should  not  be  contracted  beyond  the  State  limits.*  Such  a 
marriage,  contracted  within  the  State,  is  utterly  void,^  and  is 
bigamous,  punishable  by  imprisonment  in  the  State  prison.'^' 

This  question  is  treated  from  a  dilYerent  point  of  view  in 
England.     It  is  considered  that  such  a  penalty  follows  the  person 

settlement  are  to  direct  a  certain  portion  of  in  a  pecuniary  sense  by  the  decree  of  dis- 

the  income,  regularly  jwyable  to  the  wife,  solntion.     Mavulshiy  v.  ^ilaudslay,  L.  K.  2 

to  be  applieil  in  case  of  divorce  for  her  P.  D.  25i5.     Where  the  settlement  is  in  its 

adultery  to  the  Ivnetit  of  the  childivn  or  terms  irrevooaWe.   the   court   reluctantly 

hnslvuul.      March  v.  Maivh,  L.  K.  1  P.  &  interferes,  and  will  not  do  so  beyond  what 

D.  440.     It  takes  into  account  the  fortune  justice    in   the    case   requires.     Smith  f. 

of  the  wife,  the  inecuniary  ability  of  the  Smith,  L.  R.  12  P.  D.  102,  104. 
huslisnd.  and  the  conduct  of  the  parties.  ^  Wilkinson  r.  Gibson.  L.  R,  4Eq.  102; 

Chetwynd  r.  Chetw}-nd.  11  Jur.  X.  s.  95S.  Swift  v.  Wenman.  L.  R.  10  Eq.  15  :  Fus- 

It  will  not  deprive  a  husKand  of  any  Wnefit  sell  r.  Dowding.  L.  R.  14  Eq.  421. 
he  derived  from  the  settlement.     Thonip-  -  Fitzgerald  r.  Chapman,  L.  R.  1  Ch. 

son  r.  Thomjisou,  2  Sw.  &  T.  649.     The  D.  563  ;  Burton  v.  Sturgeon,  L.  R.  2  Ch. 

benefit  of  the  children  and  ]varents  are  D.  31S  ;  Evans  v.  Carrington,  2  Be  G.  F. 

solely  regarded.     Sykes  r.  Sykes.  T..  R.  2  &  J.  4S1,  490. 
P.  &  P.  163.    Where  the  divoree  is  for  the  «  ^ode  of  Civ.  Fro.  §  1701. 

husband's  adultery,  it  may  extinguish  his         *  Moore  r.   Hegeman.  92  N.   Y.   521  : 

interest  in  the  wife's  fortune.     Gladstone  Van  Voorhis  v.  Brintnall,  S6  N.  Y.  IS  ; 

r.   Gladstone.   L.  R,   1   P.  D.   442.     One  Thorp  v.  Thorp,  90  X.  Y.  602. 
great  object  of  varying  the  settlement  is  to  ^''  Cropsey  v.  Ogdeii.  11  X.  Y.  22S. 

prevent,  as  far  as  may  be  just  and  practi-  ^  People  v.  Faber,  92  N.  Y.  146. 

cable,  the  innocent  party  being  damaged 

spondent  were  domiciled  in  Scotland  and     Forsyth  v.  Forsyth  [1S91],  P.  363;  Xjq- 
the  settlements  were  made  in  Scotch  form,     nelev  v.  Xuuuelov.  L.  R.  15  P.  D.  186. 


nVSBASD  ASB  WITE.  179 

while  his  original  domicile  continiaes,  as  it  is  a  disabilitj  attach- 
ing to  the  person,  but  that  if  the  dissolution  of  the  marriage  }>e 
complete,  either  partj,  being  now  unmarried-,  is  free  to  change 
the  place  of  domicile,  and  there  to  follow  its  law  in  relation  to 
a  later  marriage.  *  (a) 

The  question  whether  a  party  d'  '^  ^  for  adulterj  is  prohib- 
ited from  remarrying  the  party  fi  ^  the  divorce  wag  had, 
is  still  open  and  undecided  in  the  ^'ew  !'<,  2    The  Code 

of  Ciril  Procedure  now  provides  that  the  j. . , :to/i  contained 

therein  shall  not  prevent  the  t^m2iTTi2^  of  the  parties  to  the 
action-®  It  would  seem  that  they  could  lawfully  remarr}-  were 
it  not  for  a  positive  prohibition,  and  that  sicee  this  proviso  wais 
adopted,  the  marriage  would  be  ralid. 

If  a  man  thus  -'■"■"."  ,11  ignorant  of 

the  fact,  he  woui.    ,...--  .^  -.   in  an  action 

for  fraud-* 

V.    JPorevj-n  drcorcei. —  Br  a  "/ore^^w  d'  *  ..e 

obtained  in  a  diiferent  Sta'!:^:' or  "zr:??'?,:^^:;..  .  .li 

it  is  brou^t  under  judic  .-     The  question  mar 

arise  as  well  in  the  case  '"^        ^     'e  State  of 

tiie  Union  and  considered  . ;  obtained 

in  a  foreign  country  anc  rw  here.     Where  such  a 

divorce  is  in  all  respects  :- ..  ;  -  '*•     '  '^   *    '^    would 

reoinire  that  the  decree  sh'^^  Id  in 

another  State  or  countrv.  iled,  iiowever,  on 

several  distinct  grour.'^-. 

(1)  It  mi^t  be  urir  legal 

ri^t,  to  divorce  T  State; 

in  other  words,  tt  -  >-  --^.  •-..-.  -.-  ■.--.  c-oorts 

the  State  where  th    .  r,  (^Mh^t^m  domicile 

of  the  parlaLes,  01 

sand  that  the  doml..  -  -  >. .  ..  - .  .  - ..  -.^^.  v-  - 
lished;  or,  (S)  that  the  defc..  absent  from  the  State 
where  the  divorce  was  had,  &  'e 

regarded  as  under  the  contr  .    ..    .„.    n- 

-  S-  .V.  ■:.  ATTT.-O-aT,  L.  E.  11  P.  D.         «  Ccide  <3f  Or,  Pro.  1 17«1. 
l-^;.  <  BlosBcraa  r.  Barrett,  §7  X  T.  4^ 


witMiffl  a  er^ -to  tke 

'STi5r?;. f  '  .  TO  as  1© 

-    -  ^-.i^i  iii^^t  Ti^i:^  >.^:;;.-i~.i,JT;5.gi-  "WaTter 

: .  Waxtar,  I*  E.  15  P.  D.  152.' 


180 


THE   LAW    OF   PERSONS. 


tarily  submitted  to  it;  or,  (4)  that  there  «^as  fraud  in  the  pro- 
ceedino-s  and  that  no  rule  of  the  "  comity  of  nations  "  could  be 
based  upon  a  fraud.    Each  of  these  cases  will  now  be  considered. 

(1)  The  first  of  these  views  has  assumed  importance  owing  to 
a  decision  of  the  English  House  of  Lords  known  as  "Lolley's 
Case. "  1  This  was  an  indictment  for  bigamy  under  the  following 
circumstances:  LoUey  had  been  married  in  England  to  A.,  and 
a  divorce  having  been  procured  by  her  in  Scotland,  on  the  ground 
of  his  adultery,  permitting  either  party  to  marry  again,  he 
subsequently  married  B.,  also  in  England.  Both  parties  were 
in  Scotland  when  the  divorce  took  place.  The  case  is  loosely 
reported ;  but  it  would  appear  that  LoUey  and  his  wife  were  all 
the  time  domiciled  in  England,  though  temporarily  resident  in 
Scotland,  with  a  view  to  obtaining  the  divorce. ^  The  twelve 
iiid^i-es  of  the  Superior  courts  were  consulted,  and  it  is  stated^ 
that  they  were  unanimously  of  the  opinion  that  no  sentence  or 
act  of  any  foreign  country  or  state  could  dissolve  an  English 
marriage  a  vincido  matrimonii  for  grounds  on  which  it  was  not 
liable  to  be  so  dissolved  in  England.  In  a  subsequent  case,  Lord 
CHA.NCELLOR  Eldon  said  that  he  understood  the  decision  to  be 
that  as  by  the  English  law  marriage  was  indissoluble,  a  mar- 
riage contracted  in  England  could  not  be  dissolved  in  any  way 
except  by  act  of  the  legislature.^ 

Lolley's  Case  has  met  with  much  criticism.  It  has  not  been 
specifically  overruled,  but  its  authority  has  been  greatly  weak- 
ened. It  is  held  not  to  apply  to  a  case  where  a  domiciled 
Scotchman  marries  an  English  woman  in  England,  and  the 
marriage  is  dissolved  in  Scotland  upon  a  ground  for  which,  by 
English  law,  no  divorce  could  be  granted. ^  This  decision  is 
wholly  adverse  to  the  interpretation  which  Lord  Eldon  put 
upon  the  case  in  the  decision  already  cited.  Lolley's  Case  is  now 
confined  in  its  effect  to  the  case  where  the  domicile  is  English 
"from  the  beginning  to  the  end  of  the  transaction."  In  that 
aspect  it  may  properly  be  sustained,  and  it  has  in  accordance 
with  this  view  been  recently  held  that,  if  a  person  having  an 
English  domicile  goes  to  another  country  or  State  (in  this  case 
Kansas)  to  reside,  without  abandoning  his  domicile,  and  obtains 
a  divorce  for  a  cause  not  recognized  in  England,  it  will  have 

1  Rex  V.  Lolley,  Russ.  &  RJ^  Cr.  Cases,  3  Rugg.  &  Ry.  Cr.  Cases,  p.  239. 

237 ;  also   cited  in  Tovey   v.  Lindsay,   1  *  Tovey  v.  Lindsay,  1  Dow's  Rep.  117, 

Dow's  Rep.  117,  124.  124. 

2  This  is  the  explanation  given  by  Lord  ^  Harvey  v.  Farnie,  L.  R.  6  P.  D.  35  ; 
Bi-ACKBURN  in  Harvey  v.  Farnie,  L.  R.  8  afRrmed  in  the  House  of  Lords,  L.  R.  8 
App.  Gas.  43,  59.  App.  Gas.  43. 


HUSBAND    AND   WIFE.  181 

no  effect  there. ^  In  the  same  spirit,  it  has  been  said  by  Lord 
Blackburn,'-^  that  there  is  no  case  either  in  England  or  Scotland 
which  decides  that  Lolley's  Case  is  not  right,  as  he  under- 
stands its  principle,  which  he  declares  to  be  that  parties 
domiciled  in  England,  going  to  Scotland  temporarily,  cannot 
obtain  a  divorce  which  will  be  valid  in  England,  the  Scotch 
court  having  in  such  a  case  no  jurisdiction  over  the  matter. 
It  may  accordingly  be  laid  down  as  a  prevailing  and  acknowl- 
edged rule  that  the  courts  of  the  State  where  the  parties  are 
domiciled  in  good  faith  have  jurisdiction  to  divorce  them  accord- 
ing to  the  law  of  the  domicile,  however  much  that  may  differ 
from  the  law  of  the  place  of  the  marriage.^ 

(2)  It  is  now  generally  conceded  by  jurists  that  the  true  place 
of  jurisdiction  over  questions  of  divorce  is  the  country  where  the 
parties  are  at  the  time  domiciled,  whether  that  be  the  place  of 
marriage  or  not*  (a)  This  proceeds  upon  the  ground  that  while  a 
marriage  originates  in  contract,  yet,  as  soon  as  it  is  entered  into, 
there  springs  up  a  cluster  of  legal  rules  establishing  the  status 
of  the  parties,  and  which  the  parties  cannot  shake  off  by  mutual 
consent  as  they  can  in  an  ordinary  contract.  So  the  capacity 
of  the  wife  to  act  and  contract  is  usually  much  impaired,  if  not 
entirely  denied.  These  rules  are  no  part  of  the  marriage  contract. 
They  are  mere  rules  of  law,  varying  in  different  States  and  coun- 
tries. Public  convenience  and  a  true  policy  requires  that  these 
should  be  prescribed  by  the  law  of  the  domicile,  and  that  the 
whole  subject  of  status  should  be  relegated  to  that  law. 

1  Brio-crs  V.  Brig!?s,  L.  R.  5  P.  D.  163.  accordingly  took  up  a  residence  in  London, 

2  Harvey  v.  Faruie,  L.  R.  8  App.  Cas.  but  ultimately  the  husband,  having  coiii- 
43^  59.  niitted  adultery,    abandoned  his  English 

3  Cheever  v.  Wilson,  9  Wall.  108  ;  residence,  leaving  the  wife  residing  in 
Barbery.  Root,  10  Mass.  260;  Kinnier  i?.  London.  It  was  held  that  the  English 
Kinnier,  45  N.  Y.  535.  divorce   court   had  jurisdiction   over   the 

*  The  court  of  divorce  in  England  holds  absent  husband.     It  would  seem,  however, 

that  it  has  jurisdiction  over  divorces  in  that  as  the  husband  was  never  r^o??izci7efnn 

case  of  foreign  marriages  where  the  hus-  England,  but  only  resident  there,  such  a 

band  resides  in  England,  although  not  tech-  divorce,  though  valid  for  English  purposes, 

nieally  domiciled  there.     In  one  case  the  would  not  be  recognized  as  binding  upon 

husband  was  a  French  consul  who  retained  the  husband  in  the  country  of  domicile, 

his  French  domicile  though  he  resided  in  according  to  the  views  prevailing  in  this 


PO- 


England.     Niboyet   v.   Nibovet,    L.  R.   4  country  or  even  in  England.     Santo  T 

P.  D.  1.  '  doro  V.  Santo  Teodoro,  L.  R.   5  P.  D.  79. 

In    a    still   more   recent  case  the  facts  The  rule  giving  effect  elsewhere  to  a  decree 

were  these:   An  English  lady  consented  to  made  in  the  tribunals  of  the  domicile  hns 

marry  the  son  of  a  Neapolitan  nobleman  been  applied  to  a  case  of  divorce  for  nullity 

on  condition  of  always  having,  after  mar-  (impotency),  where   the    cause  of  divorce 

riage,  a  residence  in  England,  and  residing  made    the    contract  voidable^     Turner   v. 

there  six  months  each  year.     The  parties  Thompson,  L.  E.  13  P.  D.  37. 

(a)  See  Goulder  v.  Goulder  [1892],  P.  240. 


182  THE   LAW   OF   PERSONS. 

The  "domicile"  here  meant  is  not  mere  inhabitancy,  but 
inchides  an  intent  to  abide  in  the  State.  A  residence  simulated 
for  the  purpose  of  obtaining  a  divorce  will  not  suffice,  (a)  This 
is  a  species  of  fraud  upon  the  court,  as  it  shows  the  alleged 
domicile  to  be  unreal,  and  asserted  for  the  purpose  of  evading 
the  effect  of  the  law  appropriate  to  the  condition  of  the  parties. 
It  has  accordingly  been  decided  that  a  decree  of  divorce  under 
a  statute  of  another  State  authorizing  a  divorce  between  husband 
and  wife,  neither  of  whom  is  domiciled  there,  is  of  no  force  or 
effect  in  the  State  where  the  parties  are  domiciled.' 

(3)  In  considering  the  question  of  the  absence  of  the  defendant 
from  the  State  when  the  divorce  proceedings  are  instituted,  two 
distinct  instances  may  be  referred  to:  one,  where  both  parties 
are  domiciled  in  the  State  where  the  divorce  is  sought,  oy  forum, 
and  the  other  where  only  one  is  domiciled  there. 

Where  both  parties  are  domiciled  in  the  forum,  and  one  is 
absent,  the  jurisdiction  of  the  court  continues  over  both.  One, 
by  withdrawing  from  the  State  for  a  temporary  purpose  (it  may 
be  to  avoid  a  divorce),  does  not  defeat  the  jurisdiction  of  the 
court. ^  Accordingly,  the  court  of  the  domicile  may  by  appro- 
priate means  seek  to  notify  the  absent  party  of  the  pending  pro- 
ceedings, and  if  he  does  not  appear,  a  divorce  may  be  obtained 
which  will  be  recognized  in  other  States. 

The  more  difficult  case  is  where  the  parties  have  separate 
domiciles.  Though  the  domicile  of  the  wife  usually  follows  that 
of  the  husband,  yet  for  the  purposes  of  divorce  it  may  be  distinct. 
The  question  then  arises  whether  when  the  husband  or  wife  com- 
mences in  the  court  of  his  or  her  domicile  a  proceeding  for  di- 
vorce against  the  absent  party,  the  decree  or  judgment  in  his 
or  her  favor  will  be  recognized  in  the  courts  of  the  domicile  of 
the  absent  party.  The  correct  rule  here  seems  to  be  that  as  the 
court  acts  only  upon  status,  it  cannot  declare  the  status  of  the 
absent  non-domiciled  defendant.  It  may  declare  the  status  of 
its  own  citizen,  but  not  of  the  foreign  citizen.  There  is  accord- 
ingly nothing  to  prevent  the  absent  party  from  commencing 
another  divorce  proceeding  in  the  court  of  his  or  her  domicile. 

1  Van  Fossen  v.  State,  37  Ohio  St.  317  ;  ders  him  amenable  to  the  jurisdiction  of 

People  V.  Dawell,  25  Mich.  247  ;  State  v.  a  divorce  court.     Utterton  v.  Tewsh,  Fer- 

Armington,  25    Minn.   29  ;    Litowitch   v.  guson's  R.  23. 

I.itowitch,  19   Kan.  451.     The  opinion  of  2  Hunt   v.   Hunt,   72  N.  Y.  217.     In 

CooLEY,  J.  in  People  v.  Dawell,  supra,  is  this  case  the  wife  was  the  absent  ])arty, 

y)articularly  satisfactory.     The  Scotch  law  but  the   principle   appears   to  be  equally 

goes  to  a  great  length,  holding  that  the  applicable  to  an  absent  husband, 
mere  presence  of  a  party  in  a  country  ren- 

(a)  Bonaparte  v.  Bonaparte  [1892],  P.  402. 


HUSBAND   AND   WIFE.  183 

Each  may  thus  have  a  decree  fixing  status  in  the  courts  of  their 
resi)cctive  domiciles.^ 

The  result  is  that  a  judgment  of  divorce  where  the  defendant 
is  absent  and  not  domiciled  is  of  no  effect  beyond  the  forum 
where  it  is  rendered.  There  may  be  some  difference  of  opinion 
as  to  the  point  whether  a  defendant  without  the  State,  who 
receives  actual  notice  of  the  proceedings,  would  not  be  bound. 
This  would,  however,  seem  to  be  immaterial  since  the  decisive 
fact  remains  that  the  foreign  court  has  no  power  to  make  a 
decision  affecting  his  or  her  status.  It  is  important  to  distin- 
guish carefully  between  two  questions :  one  whether  a  court  in  a 
particular  State  has  power  to  grant  a  divorce  that  will  be  valid 
witJiin  the  limits  of  the  State  itself;  the  other,  whether  if  it  be 
valid  within  the  State,  it  will  be  recognized  elsewhere.  The 
first  question  is  one  for  the  most  part  depending  on  the  local 
statutes  conferring  jurisdiction,  since  the  divorce  jurisdiction 
belonged  to  the  ecclesiastical  courts  in  England,  and  there  are 
no  such  courts  here.  The  second  question  is  not  statutory,  but 
depends  upon  the  comity  of  states,  or  private  international  law. 

Decisions  in  accordance  with  the  view  that  the  foreign  court 
cannot  in  such  cases  dispose  of  the  tvhole  question  of  status, 
and  that  only  the  status  of  the  person  domiciled  within  its 
jurisdiction  can  be  affected,  have  been  made  in  England,  New 
York,  Pennsylvania,  New  Jersey,  Maine,  Massachusetts,  Michi- 
gan, etc.      Some  of  the  cases  are  referred  to  in  the  note.^  (a) 

The  defendant  may,  however,  appear  in  the  action,  and  submit 
to  the  jurisdiction  of  the  court,  in  which  case  the  judgment 
would  not  merely  be  locally  binding,  but  would  be  regarded  as 

1  People  V.  Dawell,  25  Mich.  247,  Cross  v.  Cross,  108  N.  Y.  628,  the  court 
opinion  of  Cooley,  J.  declined  to  hear  further  discussion,  treat- 

2  People  V.  Baker,  76  N.  Y.  78  ;  O'Dea  ing  the  matter  as  fully  settled  hy  prior 
V.  O'Dea,  101  N.  Y.  23  ;  Cook  v.  Cook,  decisions,  p.  630.  Shaw  v.  Atty-Gen'l  L.  E.. 
56  Wis.  195  ;  People  v.  Dawell,  25  Mich.  2  P.  &  D.  156.  Mr.  Dicey,  in  his  excellent 
247  ;  Shannon  v.  Shannon,  4  Allen,  134  ;  work  on  Doniicil,  refers  this  class  of  cases 
Lyon  V.  Lyon,  2  Gray,  367;  Ralston  v.  (where  an  absent  defendant  is  served  with 
Ealston,  13  Phila.  30;  Love  v.  Love,  notice  of  the  proceedings  by  publication  in 
10  Phila.  453  ;  Bishop  v.  Bishop,  30  Pa.  the  local  papers)  to  a  violation  of  the  rules 
St.  412,  The  injured  party  must  seek  of  natural  justice,  p.  239.  While  this 
redress  in  the  forwm  of  the  defendant  uu-  view  is  undoubtedly  correct,  a  still  broader 
less  the  defendant  has  removed  from  what  proposition  may  be  maintained  (as  already 
was  before  the  common  domicile  of  both,  suggested)  that  the  foreign  court  has  no 
Reel  V.  Elder,  62  Pa.  St.  308  ;  Codding-  jmver  to  declare  the  status  of  the  absent 
ton  r.  Coddington,  20  N.  J.  Eq.  263.     In  non-domiciled  defendant. 

(a)  Williams -y.    Williams,   130  N.   Y.  son,  11  L.  R.   A.  443  ;  Anthony  v.  Rice, 
193.     lu  the  Matter  of  House,   4Q  N.  Y.  19  S.  W.  R.  423  ;  Smith  v..  Smith,  43  La- 
st. R.  286  ;  Munson  v.  Munson,  60  Hun,  Ann.  1140. 
189.     See,  however,  Thompson  v.  Thomp- 


1S4  THE   LAW    OF   PERSONS. 

valid  in  the  courts  of  the  defendant's  domicile.  ^  This  is  par- 
ticularly true  if  the  absent  defendant  goes  to  the  State  where  the 
case  is  pending.  ^  So  if  an  attorney-at-law  should  assume  to 
appear  for  an  absent  defendant  without  authority,  the  act  would 
perhaps  not  be  strictly  void,  but  binding  until  repudiated;  or, 
in  other  words,  voidable.^ 

A  divorce,  treated  as  utterly  void  in  the  court  of  the  domicile, 
would  result  in  such  a  manner  that  a  person  marrying  according 
to  the  decree  might  be  regarded  in  the  courts  of  the  domicile 
as  having  committed  adultery,  and  be  liable  to  an  action  for 
divorce.  This  view  would  not  be  taken  if  both  parties  had 
assented  to  the  void  proceeding,  since  there  would  be  grounds 
for  regarding  the  act  of  marriage  as  a  connivance  or  procure- 
ment of  the  adultery,  and  so  a  bar  to  the  divorce.* 

(4)  The  last  ground  on  which  a  foreign  divorce  may  be  assailed 
is  fraud  in  the  proceedings  in  which  it  was  obtained.  The  case 
here  intended  to  be  considered  is  that  of  actual  fraud  upon  the 
foreign  court.  In  this  case  the  foreign  court  itself  would  pre- 
sumably treat  the  divorce  as  void,  and  it  could  not  be  expected  to 
receive  any  greater  respect  abroad  than  it  would  have  at  home.^ 

It  has  been  frequently  urged  that  there  is  a  distinction  between 
the  recognition  to  be  given  judgments  of  courts  of  sister  States 
and  that  due  to  those  of  the  courts  of  foreign  countries,  owing 
to  an  Article  of  the  United  States  Constitution,  providing  that 
"full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State.  "^ 
It  is,  however,  settled  that  this  clause  is  not  applicable  where 
the  courts  of  the  sister  State  had  no  jurisdiction,  or  where  the 
judgment  was  obtained  by  fraud.  A  judgment  rendered  by  a 
court  without  jurisdiction  is  not  in  truth  a  judgment,  but  is  a 
mere  arbitrary  prescription  without  force  in  another  forum.  It 
would  not  have  force  even  in  a  court  of  the  same  State,  and  much 
less  in  a  tribunal  of  another  State.  The  cases  on  this  subject  are 
numerous,  and  in  modern  times  quite  harmonious.'^  (a) 

1  Cheever  v.  Wilson,  9  Wall.  108.  °  Kerr  v.   Kerr,    41    N.    Y.   272.     See 

'■2  Jones  V.  Jones,  108  N.  Y.  415.  opinion  of  Grover,  J.,  p.  278. 

3  Elliott   V.   Wohlfrom,    5.5    Ca.l.    384.  ^  Art,  IV.  §  1. 

But  see  contra,  Kerr  v.  Kerr,  41  X.  Y.  272.  "^  Borden  v.  Fitch,  15  Johns.  121  ;  Kerr 

*  Loud  V.  Loud,  129  Ma.ss.  14  ;  Palmer  v.    Kerr,    41    N.    Y.    272  ;   Thompson   v. 

V.  Palmer,  1  Sw.  &  T.  551.  Whitman,  18  Wall.  457-461. 

(a)  In  some  jurisdictions  a  judgment  of  the  United  States  in  an  action  at  law 

may  be  impeached  collnterally  for  fraud,  upon  a  judgment,  fraud,  being  an  equitable 

Kerr  v.   Kerr,  41   N.    Y.   272 ;  Vadala  v.  defence,     cannot     properl}'     be    pleaded. 

Lawes,  L.  R.  25  Q.  P>.  D.  310.     In  others  Christmas  v.  Russell,  5  Wall.  290  ;  BuUer 

it  is  necessary  to  bring  a  direct  proceeding  v.   Lidell,   43    Fed.   R.    116;  Maxwell   v. 

to  set  the  judgment  aside.      In  the  courts  Stewart,  22  "Wall.  77. 


HUSBAND   AND   WIFE.  185 

Section  III.  Judicial  Separation  or  Limited  Divorce.  — This 
form  of  divorce  prevailed  from  an  early  period  in  the  English 
ecclesiastical  courts,  and  still  exists  there  in  the  divorce  court. 
It  has  been  recognized  in  some  of  the  American  States,  includ- 
ing New  York.  Many  of  the  rules  governing  it  are  analogous  to 
those  prevailing  in  the  law  relating  to  dissolution  of  marriage. 
The  leading  grounds  for  this  form  of  divorce  at  present  are 
cruelty  and  desertion. 

I.  Cruelty. —  Cruelty,  or  scevitia,  cannot  easily  be  defined,  so 
as  to  state  whether  it  amounts  to  a  cause  for  divorce.  There  may 
be  acts  of  cruelty,  and  yet  not  of  the  grade  required  to  justify 
judicial  interference.  For  that  purpose,  the  wrongful  acts  must 
he  grave  and  weighty,  and  show  that  as  matters  stand,  the 
duties  of  married  life  cannot  properly  be  discharged.  To  con- 
stitute "  cruelty  "  in  this  sense,  when  acts  of  violence  are  relied 
upon,  they  must  be  of  such  character  as  to  endanger  safety  or 
health,  or  to  cause  reasonable  apprehension.  ^  (a)  Cruelty  is, 
in  general,  a  cumulative  charge.  It  must  evince  a  continued 
want  of  self-control,  and  be  referrible  to  permanent  causes.  In 
a  case  where  the  charges  were  confined  to  three  days  in  a  cohab- 
itation of  three  years,  they  were  held  not  to  be  sustained.  ^  It  is 
accordingly  important  to  show  a  course  of  unkind  treatment. 

However,  actual  personal  violence  is  not  the  only  kind  of 
maltreatment  for  which  this  form  of  divorce  may  be  granted. 
There  may  be  moral  as  well  as  physical  force  systematically 
exerted  to  compel  a  wife's  submission,  and  to  such  a  degree  as 
to  break  down  her  health.  In  such  a  case  there  would  be  legal 
cruelty.^  {b). 

The  following  classes  of  acts  are  not  regarded  as  le(jal 
cruelty, — neglect,  silence,  shunning  the  wife's  company,  in- 
difference, aversion  to  her  society,  or  cessation  of  matrimonial 
intercourse, — whether  practiced  separately  or  in  combination, 
there  being  no  personal  violence  or  words  of  menace*  The 
same  view  was  taken  in  a  case  where  a  husband  constantly 
railed  and  swore  at  his  wife,  and  refused  to  provide  delicacies 
ordered  by  the  doctor,  and  on  several  occasions  beat  her  child 

1  Milford  V.  Milford,  L.  R.  1  P.  &  D.  3  Kelly  v.  Kelly,  L.  I!.  2  P.  &  D.  31  ; 
295,  299  ;  Whispell  v.  Whispell,  4  Barb,  affii-med  on  appeal,  Id.  p.  59  ;  Paterson  v. 
217.  Paterson,  3  H.  L.  Cnses,  308. 

2  Plowden  v.  Plowden,  23  L.  T.  x.  s.  *  Paterson  v.  Paterson,  3  H.  L.  Cases, 
266.  308 ;  Cousen  v.  Cousen,  4  Sw.  &  T.  164. 


{a)  Fowler  v.   Fowler,  33   N.    Y.    St.     Glass  i;.  Wynn,  76  Ga.  319  ;  Lntzj;.  Lutz, 
R.  746.  31   X.  y.  St.  Pt.  718  ;   Jones  v.  Jones,  62 

(6)  Bethune  v.  Bethune  118911,  P.  205;     N.  H.  463. 


2S6  THE   LAW   OF    PERSONS. 

ill  her  presence.^  So  acts  committed  under  excitement  occa- 
sioned by  an  acute  disorder  of  the  brain  are  not  sufficient  acts 
of  cruelty,  if  on  the  cessation  of  the  disorder  the  excitement 
terminates.  It  would  be  otherwise  if  the  disease  resulted  in  a 
new  condition  of  the  brain,  rendering  the  party  liable  to  ungov- 
ernable fits  of  passion,  and  making  cohabitation  dangerous.''^ 
This  principle  cannot  be  extended  to  acts  committed  by  an  in- 
sane person.2(a)  Again,  habitual  drunkenness  is  not  a  suffi- 
cient ground  for  a  divorce  for  "cruelty,"  even  though  it  destroy 
domes'tic  comfort. '^  (h)  Particular  acts  of  misconduct  may,  how- 
ever, be  considered.^ 

Such  acts  as  the  following  have  been  regarded  as  acts  of 
cruelty:  Wilful  communication  to  the  wife  of  a  loathsome 
disease;^  ill-treatment  of  children  in  the  wife's  presence,  if 
carried  so  far  as  to  affect  her  health,  may  perhaps  be  cruelty. 
Such  acts  must  directly  shock  the  wife's  sensibility.  Such  a 
case  has  been  termed  "constructive  cruelty."'''  There  are  also 
certain  acts  of  indignity  and  insult  which  have  been  adjudged  to 
be  cruelty,  such  as  wilful  spitting  in  the  wife's  face.  Such  an  act 
as  this  will  have  weight  depending  on  the  way  it  is  received, — 
as,  for  instance,  whether  it  is  resented  or  not  at  the  time.^ 
This  act  would  be  sufficient  for  a  divorce  if  accompanied  with 
other  acts  of  indignit}',  such  as  pushing  and  dragging  her 
about  a  room.^  A  similar  remark  may  be  made  of  unfounded 
charges  against  the  wife's  chastity,  known  by  the  husband  to  be 
false. ^°  The  same  view  was  taken  of  an  assault  upon  the  wife  in 
a  public  street,  leading  a  passer-by  to  suppose  that  she  was  a 
l)rostitute.^^  In  cases  of  this  kind  the  court  has  taken  into  con- 
sideration the  position  in  which  the  husband  has  placed  the  wife 
in  the  family,  and  the  authority  and  control  exercised  under  his 
direction  by  the  servants  over  her.^^ 

The  husband  may  also  have  a  divorce  for  the  wife's  cruelty. 
There  is  no  reason  why  the  court  should  not  protect  the  husband 

1  Birch  V.  Birch,  42  L.  J.  N.  s.  Prob.  Mat.  23  ;  Manning  v.  Manning,  6  Ir.  Rep. 
&  Mat.  2.3.  (Equity)  417. 

2  Curtis  V.  Curtis,  1  Sw.  &  T.  192,  213.  »  Waddell  v.  Waddell,  2  Svv.  &  T.  584. 
=»  Hall  V.  Hall,  3  Sw.  &  T.  347.  ^  Saunders  v.  Saunders,  1  Robertson, 
*  Hudson  V.  Hudson,  Id.  314.                     Ecc.  549. 

5  Power  V.  Power,  4  Sw.  &  T.  173.  ^"^  Durant  v.  Durant,  1  Hagg.  Ecc.  733, 

6  N V.  N ,  3   Sw.    &   T.  234  ;     769. 

Boardman  v.  Boardman,  L.  R.  1  P.  &  D.  i^  Milner  v.  Milner,  4  Sw.  &  T.  240. 

233.  12  Anthony   v.  Anthony,    1   Sw.  &  T. 

■?  Suggate  V.  Suggate,  1  Sw.  &  T.  489  ;  594. 
Birch  V.   Birch,  42   L.  J.    n.   .s.   Prob.   & 


(a)  Cohn  v.  Cohn,  85  Cnl.  108.  (b)  Anonymous,  17  Abb.  N.  C.  231. 


HUSBAND   AND   WIFE.  187 

wliere  the  wife's  passions  are  so  little  under  control  that  she 
habitually  uses  personal  violence  towards  him,  which  leads  to 
a  well-founded  apprehension  of  bodily  injury.  So  the  moral  effect 
of  the  wife's  violence  may  be  so  serious  that  the  court  will  inter- 
fere and  not  drive  the  husband  to  the  necessity  of  meeting  force 
by  force.^  A  husband  cannot,  however,  obtain  a  divorce  for  cruelty 
on  tlie  same  state  of  facts  as  a  wife.  He  must  show  such  a  contin- 
ued course  of  bad  conduct  on  her  part  as  will  satisfy  the  court  that 
it  is  unsafe  for  him,  with  a  due  exercise  of  his  marital  power,  to 
cohabit  with  her.  As  he  is  legally  the  head  of  the  family,  he  may 
show  efforts  on  her  part  to  subvert  his  place  in  the  household 
by  proving  acts  of  misconduct  towards  children,  visitors,  and 
servants. 2 

II.  Desertion.  —  This  is  a  good  ground  for  a  decree  of  judicial 
separation  in  England  as  well  as  in  New  York  and  other  States. 
In  some  States  there  may  be  an  absolute  divorce  on  this  ground. 
The  cause  in  England  is  "  desertion  without  cause  for  two  years 
and  upwards."  The  words  of  the  New  York  statute  are  "  aban- 
donment of  the  plaintiff  by  the  defendant"  and  "where  the  wife  is 
plaintiff',  the  neglect  or  refusal  of  the  defendant  to  provide  for  her." 

The  word  "  abandonment "  is  practically  equivalent  to  "  deser- 
tion." The  fair  construction  of  the  statute  is  that  "abandon- 
ment" by  either  party  is  a  good  ground  for  an  application  for 
divorce  by  the  other.  There  is  a  clear  distinction  made  between 
abandonment  and  the  refusal  or  neglect  of  the  husband  to  provide 
for  the  wife.  He  may  support  her,  and  still  abandon  her.^  (a) 
The  principal  element  in  a  case  of  desertion  is  the  intent.  As- 
suming that  the  charge  is  against  the  husband,  it  is  the  rule  that 
the  wife  is  entitled  to  his  society  and  protection.  If  he  refuse 
to  live  with  her  without  reasonable  cause,  he  may  be  said  to  have 
deserted  her.  (5)  The  case  will  not  be  changed  by  the  fact  that 
he  gives  her  an  allowance.* 

Some  principles  governing  this  subject  may  be  stated. 
(1)    The  act  relied  on  as  desertion  must  have  been  done  against 
the  will  of  the  complainant.^ 

1  White  V.  White,  1  S\v.  &  T.  591  ;  This  point  is  now  settled  in  the  husband's 
Prichard  v.  Prichard,  3  Sw.  &  T.  523 ;  favor  by  §  1762  of  the  Code  of  Civil  Pro- 
Forth  V.  Forth,  15  W.  R.  1091.  cedure. 

2  Perry  v.  Perry,  1  Barb.  Ch.  516.  3  Yeatraan  v.  Yeatman,  L.  R.  1  P.  & 
There  was  at  one  time  some  doubt  in  New  D.  489. 

York  whether,    owing  to  the  condition  of  *  Macdonald  v.  Macdonald,  4  Sw.  &  T. 

the  statutes,  the  husband  could  have  such     242. 

a  divorce.  (See  Perry  v.  Perry,  2  Paige,  501.)  3  Ward  v.  Ward,  1  Sw.  &  T.  185. 


(a)  Clearman  v.  Clearman,  15  N.  Y.  (b)   Williams  v.   Williams,  130  N. 

Civ.  Pro.  R.  313.  193. 


1S8  THE   LAW    OF   PERSONS. 

(2)  111  conduct  on  the  husband's  part  compelling  the  wife  to 
leave  him  may  constitute  a  case  of  desertion.^  (a) 

(3)  Desertion  consists  in  actually  and  wilfully  bringing  to  an 
end  an  existing  state  of  cohabitation.  If  cohabitation  has  ceased 
by  mutual  adverse  acts  or  consent,  "  desertion  "cannot  take  place 
until  their  common  life  and  home  have  been  resumed.^ 

(4)  If,  however,  there  is  at  first  merely  absence  of  one  of  the 
parties  for  a  special  reason,  with  no  general  intent  to  cease  co- 
habitation, and  afterwards  the  absent  party  ceases  to  correspond 
with  the  other,  and  shows  by  acts  an  intent  not  to  resume  con- 
jugal relations,  the  facts  will  constitute  desertion.^  (5) 

(5)  One  party  cannot  urge  against  the  other  that  separation  is 
desertion,  when  it  is  involuntary,  or  caused  by  the  act  or  default 
of  the  party  complaining.*  (c) 

(6)  If  the  desertion  be  in  itself  complete,  a  subsequent  offer 
to  return  will  not  avail,  as  the  deserted  party  has  a  legal  right 
and  cause  of  action  of  which  he  cannot  be  deprived  without  his 
consent.^  In  determining  whether  the  desertion  is  complete  under 
this  rule,  regard  may  properly  be  had  to  the  circumstances  and 
manner  of  departure.^ 

Under  the  New  York  statute,  neglect  by  the  husband  to  pro- 
vide for  the  wife  is  a  ground  for  an  action  for  a  limited  divorce 
by  her  without  desertion.  On  this  branch  of  the  subject  there  is 
but  little  adjudication.'' 

Cruelty  of  the  husband  will  not  affect  his  right  to  a  divorce 
for  the  wife's  adultery.^  (tf)  The  same  rule  applies  to  a  husband's 
desertion.^ 

III.  Procedure  in  actio7is  for  limited  divorce.  —  The  mode  of 
conducting  the  action  is  substantially  the  same  as  in  a  case  of 
dissolution,  and  reference  may  be  made  to  what  has  been  stated 


1  Graves  v.  Graves,  12  W.  R.  1016.  ^  Cargill  v.  Cargill,  1  Sw.  &  T.  235. 

•''  Fitzgerald  v.  Fitzgerald,  L.  R.  1  P.  6  Cook  v.  Cook,  13  N.  J.  Eq.  263  ; 
&  D.  694  ;  Townsend  v.  Townsend,  42  Rogers  v.  Rogers,  18  N.  J.  Eq.  445.  Many 
L.  J.  N.  s.  Prob.  &  Mat.  71  ;  Cooper  v.  authorities  on  this  general  subject  are  col- 
Cooper,  33  L.  T.  N.  s.  264.  lected  in  Uhlniann  v.  Uhlmann,  17  Abb. 

3  Henty  v.  Henty,  33  L.  T.  N.  s.  263  ;  N.  C.  236. 

Stickland  v.    Stickland,  35   L.    T.   N.   s.  "?  Code  of  Civ.  Pro.  §  1762  ;  Ahrenfeldt 

767  ;  Gatehouse  v.  Gatehouse,  L.  R.  1  P.  v.  Ahrenfeldt,  Hoffman's  Ch.  47. 

&  D.  331.  8  Forster  v.  Forster,  1  Hagg.  Consist. 

4  Buckmaster  v.  Buckmaster,  L.  R.  1  E.  144,  146. 

P.  &  D.  713  ;  Keech  v.  Keech,   Id.  641  ;  ^  Morgan   v.   Morgan,   2  Curteis    Ecc. 

Crabb  v.  Crabb,  Id.  601.  679- 


(a)  Dickinson  v.   Dickinson,   62  L.  T.  (c)  Williams  v.  Williams,    130  N.  Y. 
R.  330.                                                                  193. 

(b)  Drew  v.  Drew,  64  L.  T.  R.  840.  (d)  Cf.  p.  167  ante,  note  (a). 


HUSBAND   AND   WIFE.  189 

imdei-  that  head.^  Alimony  may  be  allowed  pendente  lite  and 
'•suit  money"  for  carrying  on  the  litigation  in  the  same  general 
manner. 

Tlie  defences  will  be  either  denial  of  the  charges  made,  or 
recrimination,  condonation,  lapse  of  time,  etc.  A  recriminatory 
charge  will  embrace  misconduct  on  the  part  of  the  complain- 
ant.- (a)  Nothing  will  be  impertinent  which  is  material  as  an 
absolute  defence,  or  which  bears  upon  the  question  of  costs  or  tlie 
amount  of  alimony.  It  will  be  proper  to  inquire  into  the  general 
course  of  conduct  of  the  parties  as  relevant  to  the  inquiry.^ 
The  adultery  of  the  plaintiff  will  be  a  bar  to  this  kind  of  divorce.* 
The  defence  of  condonation  may  also  be  referred  to ;  cruelty  may 
be  forgiven  as  well  as  adultery.  New  acts  of  cruelty  will  revive 
the  original  cause  of  action.  It  is  not  necessary  that  the  same 
grade  of  wrongful  acts  should  be  repeated  in  order  to  produce 
this  result.  There  is  an  implied  promise  by  the  wrong-doer  that 
the  injured  party  shall  be  treated  in  all  respects  in  a  kindly  man- 
ner. The  original  charge  may  be  revived  even  though  the  new 
acts  may  not  be  of  themselves  sufhcient  to  justify  a  separation.^  (6) 

Where  the  wife  is  successful,  permanent  alimony  is  awarded, 
depending  for  its  amount  upon  the  estate  of  the  husband,  the 
grade  of  ill-treatment  sustained  by  the  wife,  and  the  claims  of 
others  upon  him  for  support.^  Where  the  wife  is  in  fault,  no  per- 
manent alimony  will  be  allowed  her."  The  same  general  rules 
extend  to  applications  for  the  custody  of  the  children  as  in 
actions  for  dissolution.  The  decree  may  provide  for  a  separation 
for  a  definite  period,  —  as,  for  example,  five  years,^  —  or  it  may 
be  permanent.^ 

Such  a  divorce  as  this  leaves  the  parties  still  husband  and  wife. 
It  was  originally  resorted  to  with  the  hope  of  reconciliation.  Ex- 
perience shows  that  the  condition  is  dangerous  to  virtue,  and  the 
expediency  of  such  a  system  may  well  be  doubted.     Any  cliildren 

1  An.fe,^^.\Qi  et  seq.  "^  Peny   v.    Perry,   2    Barb.    Ch.   311; 

2  Hopper  V.  Hopper,  11  PaiEje,  46.  Palmer  t\  Palmer,  1  Paige,  276. 

8  Whispell  V.  Whispell,  4  Barb.  217.  »  Bedell  v.  Bedell,  1  Johns.  Ch.  604. 

*  N.  Y.   Code    of  Civ.    Pro.    §  1765  ;  ^  Barrere  v.  Barrere,  4  Johns.  Ch.  187. 

Burdell  V.  Burdell,  2  Barb.  473.  The  fonn  of  decree  in  this  case  has  been 

6  Burr  V.  Burr,  10  Paige,  20.  declared  to  be  a  good  precedent.     Pool  v. 

6  Id,  Pool,  2  Edw.  Ch.  192. 

(re)  Cruel  and  inhuman  conduct  on  the  183.     See  also  Ortmann  v.   Ortmann,  52 

part  of  the  plaintiff  may  be  set  up  not  only  N.  W.  R.  619. 

as  a  defence  but  as  a  counterclaim,  which,  (6)  Subsequent   cohabitation    is  not   a 

if  proved,  will  entitle  the  defendant  to  a  condonation  of  acts  of  cruelty  in  the  sense 

decree  for  separation  and  reasonable  sup-  that  it  is  of  adultery,  though  it  is  evidence 

port.    Waltermire2?."\Valtermire,  110  X.  Y.  of  condonation.    Doe  v.  Doe,  52  Hun,  405; 

Cox  V.  Cox,  23  N.  Y.  St.  R.  691. 


190  THE   LAW   OF   PEKSONS. 

boni  while  the  decree  continues  operative  will  be  presumed  to 
be  illegitimate,  since  it  will  be  presumed  that  the  parties  have 
obeyed  the  decree  of  the  court.^  Still,  the  contrary  may  be  shown 
by  evidence  and  the  legitimacy  of  the  child  established.  The 
j)arties  may  apply  to  be  discharged  from  the  decree.^  If  recon- 
ciled, a  repetition  of  the  offence  does  not  revive  the  cause  of 
action  on  which  the  decree  or  judgment  was  founded.^ 

DIVISION   III. —  The  Legal   Consequences  of  the  Marriage 

Relation. 

By  the  common  law,  a  single  woman,  called  a  feme  sole,  may 
freely  make  contracts,  and  do  all  acts  for  the  disposition  of  lands 
and  goods  which  any  man  in  the  same  circumstances  may  do. 
Her  mode  of  action  is  sometimes  affected  by  rules  of  decency 
and  decorum.  Thus,  in  rendering  homage  to  her  feudal  lord, 
while  a  man  would  say  to  him,  "  I  become  your  man,"  she  was 
not  required  to  say,  "  I  become  your  woman,"  but  simply,  "  I  do 
homage  unto  you."  * 

On  her  marriage,  her  legal  capacity  to  act  was  seriously  im- 
paired by  reason  of  considerations  of  public  policy.  Her  legal 
existence  was  practically  suspended,  or  merged  in  that  of  her 
husband.  They  were  now  called  "baron  and  feme."  It  was  a 
consequence  of  this  suspension  that  she  could  not  contract  with 
third  persons  (except  that  she  might  in  some  instances  act  as 
agent)  nor  with  her  husband.  Contracts  made  between  them 
while  single  were  dissolved  by  the  marriage.  The  husband  could 
not  convey  land  to  her,  though  he  might,  where  the  right  to 
devise  land  existed,  leave  it  to  her  by  will,  since  the  devise  did 
not  take  effect  until  the  marriage  was  at  an  end.  Upon  marriage 
he  became  immediate  owner  of  her  tangible  personal  estate,  had 
a  right  to  collect  for  his  own  use  her  rights  of  action,  and  to  take 
for  his  own  benefit,  while  they  lived,  the  rents  and  profits  of  her 
real  estate.  On  his  part,  he  became  liable  for  her  debts  and  other 
obligations  incurred  before  marriage,  and  responsible  for  her 
wrongs  or  torts  committed  before  or  during  marriage,  and  was 
also  under  a  legal  duty  to  sustain  her  during  marriage. 

The   statements   just   made  are   only   true   in  an  unqualified 

^  Parishes  of  St.   George  and  St.  Mar-  been  decided  that  where  the  parties  "  come 

garet,  1  Salk.  123.  together,  there  is  a  complete  end  of  it,  and 

2  Barrere  v.  Barrere,  4  Johns.  Ch.  187.  that  can  never  again   be  made  a  cause  of 

*  Lord  St.  John  v.  Lad}'  St.  John,  11  complaint  for  the  same  purpose." 

Ves.  526,  532;   Fletcher  v.     Fletcher,    3  *  Coniyn's  Digest,  Baron  &  Ferae  (Al ) ; 

Brown,  C.  C.  619  n.    Lord  Chancellor  Coke  upon  Littleton,  66  a  (§  87). 

Eldox  said  in  the  case  first  cited  that  it  had 


HUSBAND   AND   WIFE.  191 

manner  in  a  court  of  law  as  distinguished  from  equity.  Courts 
of  chancery  (or  equity)  at  an  early  day  established  an  artificial 
system  of  rights  in  the  wife's  favor,  depending  upon  the  doctrine 
of  "  trusts  for  her  separate  use."  Her  riglits  and  capacities  thus 
became  to  a  certain  extent  a  matter  of  form  rather  than  of  sub- 
stance, since  by  placing  her  property  under  a  mere  technical 
trust,  she  might  have  powers  of  disposition  and  control  of  it 
substantially  equivalent  to  those  possessed  by  a  single  woman. 

Not  long  before  the  middle  of  the  present  century,  this  subject 
began  to  attract  the  attention  of  legislatures  in  this  country.  At 
first  the  statutes  were  framed  on  the  idea  of  withdrawing  the 
ownership  of  the  wife's  property  from  her  husband  as  a  mere 
result  of  the  marriage,  and  with  a  view  to  enable  her  to  exercise 
the  ordinary  acts  of  ownership  over  it,  such  as  conveying,  mort- 
gaging, or  devising  it.  The  general  power  to  make  contracts  was 
still  withheld.  There  is  now  a  tendency  to  confer  this  also,  and 
to  assimilate  the  capacity  of  a  married  woman  to  transact  busi- 
ness, and  to  make  contracts,  to  that  of  a  single  woman.  The 
general  power  to  make  contracts,  already  conceded  in  several 
States,  is  not  likely  to  be  long  denied  elsewhere. 

It  will,  however,  for  a  long  period  be  necessary  for  the  theoret- 
ical or  even  practicing  lawyer  to  be  familiar  with  the  early  law. 
The  statutes  are  prospective  in  their  character,  and  do  not  abro- 
gate past  transactions  involving  vested  rights.  Moreover,  the 
scope  of  modern  legislation  cannot  be  fully  understood  without 
an  intimate  acquaintance  with  the  rules  of  the  common  law. 

Section  I.    The  rights  of  the  husband  in  the  ivife's  property. 

Subsection  I.  At  common  laiv. — In  considering  the  rights  of 
the  husband  over  the  wife's  property  at  common  latv,  six  forms  of 
ownership  may  be  noted. 

(1)  Her  real  estate  oivned  in  fee.  In  this  case,  the  husband 
is  entitled  to  the  rents  and  profits  while  both  live.  He  is  techni- 
cally said  to  have  an  estate  for  the  joint  lives  of  himself  and  his 
wife.  Should  he  die  first,  the  wife  is  absolute  owner  ;  should  he 
outlive  her,  the  estate  descends  to  her  heirs,  free  from  all  claim 
on  his  part.  The  interest  of  the  husband  during  their  joint  lives 
can  be  sold  by  him  or  seized  by  his  creditors. 

When  a  child  of  the  marriage  is  born  alive  during  the  life  of 
the  wife,  a  different  rule  prevails.  He  then  has  an  estate  for  his 
oivn  life.,  outlasting  the  wife's  life,  if  he  survive  her.  This  is 
called  "  tenancy  by  the  curtesy  of  England,"  or  simply  "  tenancy 
by  the  curtesy." 

Neither  of  these  estates,  while  conferring  upon  the  husband  a 
right  to  the  rents  and  profits  of  the  land,  confers  the  absolute 


192  THE   LAW   OF   PERSONS. 

ownership  of  the  land  upon  him.  This  still  remains  in  the  wife, 
subject  to  her  husband's  partial  interest. 

At  the  death  of  the  wife  the  husband,  being  tenant  by  the  cur- 
tesv,  stands  towards  the  wife's  heirs  in  the  position  of  a  life  ten- 
ant. Should  he  commit  any  wilful  injury  to  the  property  beyond 
what  a  reasonable  use  of  it  would  permit,  he  is  guilty  of  "  waste," 
which  would  result  in  forfeiture,  by  means  of  an  "  action  of  waste." 
By  a  technical  rule,  the  heirs  could  only  proceed  against  the  husband 
for  such  waste,  notwithstanding  a  sale  of  his  estate  by  him.  There 
is  no  legal  relationship  or  "  privity  "  between  the  heirs  and  the 
purchaser.  In  like  manner,  if  the  heirs  conveyed  their  interest, 
the  purchaser  from  them  could  not  sue  the  husband.  This  last 
case  was  at  an  early  day  changed  by  statute.^  (a)  But  if  both 
parties  (husband  and  heirs)  convey  their  respective  interests,  the 
assignee  of  the  heirs  can  bring  his  action  of  waste  for  a  forfeiture 
against  the  assignee  of  the  husband,  there  being  privity  of  estate 
between  them.^ 

While  the  husband  can,  in  a  proper  sense,  only  convey  his  life 
estate  to  a  grantee,  he  sometimes  wrongfully  assumes  to  do  more 
and  to  convey  the  wife's  entire  estate.  Possession  taken  under  such 
a  conveyance,  and  held  in  accordance  with  the  rules  governing  ad- 
verse possession,  might  divest  the  estate  of  the  wife  or  her  heirs, 
as  the  case  might  be,  and  convert  it  into  a  right  of  action  ;  and 
this  would  be  barred  by  the  statute  of  limitations,  if  the  action 
were  not  brought  to  recover  the  property  within  the  time  allowed 
by  law  after  the  husband's  death. 

(2)  An  estate  in  land,  granted  to  the  husband  and  wife  after 
marriage.  This  is  called  an  estate  by  the  entirety.  Each  is 
supposed  to  own  the  whole.  On  the  death  of  either,  the  survivor 
takes  the  whole  estate  absolutely.  This  rule  does  not  apply 
where  the  estate  is  conveyed  to  them  before  marriage.  So,  accord- 
ing to  some  authorities,  it  would  not  be  extended  to  cases  where 
there  were  words  in  the  instrument  showing  that  a  different 
estate  was  intended,  —  e.  g.  a  tenancy  in  common. 

(3)  A  life  estate  in  land.  Under  this  head  tliere  are  two 
instances.  The  first  is  where  the  wife  owns  an  estate  for  her 
own  life.  In  this  case  the  husband's  interest  ceases  with  the 
wife's  life,  although  he  is  entitled  to  the  emblements,  or  crops 
produced  by  labor  and  capital,  growing  at  the  time  of  her  death. 
In  the  second  case,  if  the  person  (called  cestui  que  vie)  by  whose 

^  1  Cruise's  Digest,  173  ;  so  in  New  v.  Shraeder,  13  Johns.  260 ;  Foot  v.  Dick- 
Ynrk,  1  R.  L.  62  (1813).  inson,  2  Met.  611. 

8  Walker's  Case,  3  Coke,  22  a  ;  Bates 

(a)  See  Code  of  Civ.  Pro.  §§  1651-1659. 


HUSBAND    AND    WIFE.  3  93 

life  the  duration  of  the  estate  is  measured,  outlives  the  wife,  and 
she  dies  before  the  husband,  he  takes  the  estate  as  "  occupant." 
By  statute,  in  some  States,  including  New  York,  the  remaining 
interest  is  treated  as  personal  property,  in  which  view  he  would 
usually  succeed  to  it  as  administrator.  If  the  wife  should  outlive 
the  husband,  any  unexpired  interest  would  belong  to  her. 

(4)  Rights  of  action.  Under  this  head  would  be  included 
notes,  bonds,  book  accounts,  and  other  claims  enforceable  by 
action.  The  husband  by  common  law  has  a  right  to  collect 
these  by  an  action  for  his  own  use.  He  is  in  such  a  case  said 
"  to  reduce  them  to  possession."  It  is  not  easy  to  define  this 
expression.  Its  general  signification  is  to  bring  the  right  of 
action  into  such  complete  control  that  he  can  be  regarded  as 
owner.  The  meaning  is  shown  by  instances.  Recovery  of  judg- 
ment in  their  joint  names  is  not  a  reduction  into  possession,^  nor 
is  a  collection  of  interest  upon  a  debt.  The  receipt  of  the  princi- 
pal by  him  would  be.  The  same  rule  would  be  applied  to  a 
release  of  the  debt,  to  the  debtor.  This  is  a  plain  act  of  dominion 
or  ownership.  So  the  same  rule  applies  to  a  change  in  the  nature 
of  the  debt,  as  where  a  new  security  is  taken  in  the  husband's 
name'  by  way  of  substitution  for  the  wife's  claim.  There  are 
cases  in  which  the  husband  may  have  an  election  to  sue  alone  or 
in  their  joint  names  ;  in  such  a  case  a  judgment  recovered  in  his 
own  name  would  be  a  "reduction  into  possession,"  while  one 
recovered  in  their  joint  names  would  not  be.''^ 

Still  another  mode  of  reducing  to  possession  is  for  the  hus- 
band to  sell  the  right  of  action  to  a  purchaser  for  a  valuable 
consideration.  The  purchaser  in  such  a  case  becomes  owner  with- 
out collecting  the  debt,  provided  that  the  husband  had  himself  the 
power  of  immediate  enforcement  of  the  claim.  But  if  the  interest 
of  the  wife  were  at  the  time  of  the  sale  future  or  reversionary^ 
so  that  the  husband  could  not  himself  then  collect  the  claim,  it 
is  the  view  of  many  authorities  that  the  sale  is  not  binding  upon 
the  wife,  if  she  survive.^  If  there  was  fraud  practised  on  the 
husband  in  such  a  sale,  the  right  to  rescind  it  would  vest  in  him, 
and  on  his  death  would  pass  to  his  executors.^  The  test  question 
thus  becomes  capacity  to  enforce  the  right  of  action. 

Again,  the  husband's  creditors  may  seize  upon  the  wife's  rights 
of  action  as  a  means  of  payment  of  their  claims.     Still,  they  would 

•I  Searing  v.  Searing,  9  Paige,  283.  v.  Jackson,  Drnry  (Sngden's  Dec.)  42  ;  s.  c. 

2  Hilliard   v.   Hambridge,  Aleyn,   36  ;  2  Con.  &  Lawson,  605  ;  Rogers  v.  Acaster, 

Brashford  v.  Buckingham,   Cro.  Jac.  77  ;  14  Beav.  445  ;  Duberley  v.  Day,  16  Beav. 

Searing  v.  Searing,  supra.  33. 

8  Some   of  these  cases  are,    Ashby  v.  *  Widgeiy  v.  Tepper,  L.  R.  7  Ch.  D. 

Ashby,  1  Collyer,  553;  Box  v.  Box  and  Box  423. 

13 


194  THE   LAW   OF   PERSONS. 

onlv  acquire  the  power  to  reduce  them  into  possession.  There 
is  however,  an  important  distinction  between  this  case  and  that 
of  a  purchaser  from  the  husband.  The  hitter  may  acquire  a  title 
without  collecting  them,  while  if  a  creditor  does  not  collect  them 
during  the  husband's  life,  they  will  revert  to  the  wife  should  she 
survive.  The  reason  of  the  distinction  between  the  two  cases  is, 
that  the  husband's  act  is  a  voluntary  transfer,  while  the  proceeding 
of  the  creditors  is  against  his  will,  or  in  legal  phrase,  in  invitum. 

The  various  claims  of  husband,  purchaser,  or  creditor  are 
subject  to  an  important  qualification.  The  court  will,  in  a 
proper  case,  require  a  reasonable  provision  to  be  made  from  the 
property  for  the  support  of  the  wife  and  children,  whether  she  has 
a  life  estate  or  an  absolute  interest.^  This  is  particularly  clear 
when  it  becomes  necessary  for  either  of  the  above-named  parties 
to  ask  the  aid  of  a  court  of  equity.  The  well-established  rule  that 
"  he  who  seeks  equity  must  do  equity  "  will  cover  the  case.  It  is 
quite  immaterial  whether  the  husband,  a  purchaser,  or  a  creditor 
may  seek  relief.  Instances  of  this  kind  are  legacies  or  distribu- 
tive shares  of  an  intestate's  estate.  The  New  York  authorities  go 
still  farther,  and  will  not  permit  a  party  to  recover  even  in  a  court 
of  law  without  making  a  suitable  provision  for  a  wife.  The 
equity  court  will,  if  the  case  require  it,  interfere  by  injunction.  ^ 

Should  the  husband  not  reduce  the  wife's  right  of  action  into 
possession,  and  die  leaving  her  surviving,  it  belongs  to  her  abso- 
lutely by  survivorship.^  On  the  other  hand,  should  he,  under  the 
same  circumstances,  survive,  the  things  in  action  would  belong  to 
him  beneficially,  subject  to  the  payment  of  the  wife's  debts.  He 
could  no  longer,  however,  enforce  them  in  his  oivn  name,  or  in  his 
name  joined  with  his  wife's,  since  they  would  pass  in  form  to  his 
wife's  administrator.  Should  he  be,  as  is  usually  the  case,  the 
administrator,  he  would  take  the  rights  of  action,  in  the  first 
instance,  as  the  wife's  rep)-esentative,  and  after  discharging  his 
duties  in  that  character,  the  residue  would  belong  to  him  indi- 
vidually. His  position  would  be  nearly  analogous  to  that  of  a 
father  administering  on  the  personal  estate  of  an  only  child,  and 
entitled,  after  settling  claims,  to  the  residue,  —  the  only  difference 
being  that  the  father  takes  the  residue  by  the  statute  of  distribu- 
tions, and  the  husband  by  common  law.  If,  instead  of  the  hus- 
band, some  other  person  were  the  administrator,  the  latter  would 
settle  the  estate,  and  account  to  the  husband  for  the  residuum  as 

1  Taunton  v.  Morris,  L.  R.   11  Ch.  D.  2    Van  Epps  v.  Van  Deusen,  4  Paige, 

779.     In  this  case  the  entire  income  of  the  64,  74. 

fund  (£500  per  year)  was  settled  on  the  3  Gaters  v.  Madeley,  6  M.  &  W.  425. 
wife. 


HUSBAND  AND    WIFE. 


195 


trustee.  So  if  the  husband  should,  though  surviving  the  wife,  die 
before  actually  administering  the  estate,  an  administrator  de 
bonis  non  would  be  appointed  on  the  wife's  estate,  and  then,  acting 
as  trustee  for  the  husband's  estate,  pay  over  the  surplus  to  the 
administrator  of  that  estate.  Accordingly,  there  is  no  real  con- 
nection between  the  husband's  right  to  the  administration  and 
his  right  to  the  residue.  He  might  be  deprived  of  the  adminis- 
tration and  still  be  cestui  que  trust  of  the  residue.^  This  view  of 
the  husband's  rights  was  sanctioned  by  the  New  York  courts, 
though  on  somewhat  different  grounds,  as  the  theory  of  a  trust 
for  the  husband  or  his  representatives  was  not  developed.^  The 
wife's  rights  of  action  may  in  equity  become  the  property  of  the 
husband  by  a  contract  between  them  to  that  effect,  based  on  a 
valuable  consideration.  In  such  a  case  he  is  in  substance  a  pur- 
chaser of  tliem,  and  his  title  does  not  depend  upon  any  act  on  his 
part  reducing  them  to  possession. 

(5)    Chattels  real.      This  expression  includes   leases  of   land. 


-  This  point  has  occasioned  some  diffi- 
culty in  the  courts,  but  the  result  is  as 
above  stated.  The  clearest  exposition  of 
the  law  is  found  in  the  case  of  Atty- 
Gen'l  V.  Partington,  in  the  Exchequer 
Chamber,  10  Jur.  N.  s.  825,  827,  828  ;  s. 
c.  33  L.  J.  Exch.  281  ;  3  H.  &  C.  193. 
The  theory  of  the  subject  was  there 
directly  involved,  the  question  being 
whether  the  husband's  administrator  was 
liable  to  a  succession  duty  though  the 
wife's  administrator  held  the  assets.  Of 
course  he  could  not  so  be  liable,  unless  he 
was  an  equitable  owner.  In  a  very  able 
opinion  by  Willes,  J.,  it  was  held  that 
the  husband's  administrator  was  liable  to 
pay  the  succession  duty,  as  beneficial  owner. 
A  single  sentence  from  the  report  in  the 
Law  Journal,  p,  287,  will  show  the  theory 
of  the  decision.  "  As  the  surviving  hus- 
band is  entitled  to  letters  of  administration 
of  his  wife's  estate,  and  to  reduce  such 
property  (if  not  reduced  into  possession 
during  the  coverture)  into  possession  as 
her  administrator  but  for  his  own  benefit, 
so  it  has  further  been  long  established 
that  the  circumstance  of  his  death,  before 
he  has  so  reduced  the  property  into  posses- 
sion, shall  not  affect  the  title  thereto,  but 
that  the  representative  of  the  vnfe  shall  hold 
the  property  in  truest  for  the  representativs 
of  the  husband."  The  case  of  Fleet  v. 
Perrins,  L.  R.  3  Q.  B.  536  ;  on  ap- 
peal, L.  R.  4  Q.  B.  500,  does  not  at   all 


conflict  with  Atty-Gen'l  v.  Partington, 
siqn-a.  The  wife's  administratrix  there 
brought  an  ordinary  action  for  money  had 
and  received  against  a  debtor  to  the  \vife's 
estate.  It  was  claimed  that  the  action  was 
misconceived  (L.  R.  3  Q.  B.  540),  and 
should  have  been  brought  by  the  husband's 
administrator.  The  eipiitable  right  of  the 
husband's  estate  to  the  proceeds  of  the  suit 
was  not  involved.  The  duty  of  the  wife's 
administrator,  as  there  held,  to  be  the 
formal  plaintiff  against  such  a  debtor  is  in 
precise  accord  with  the  theory  of  Atty-Gen'l 
V.  Partington.  Elliott  v.  Collier,  3  Atkyns, 
526,  before  Lord  Hardwicke,  is  very 
strong  and  clear  in  the  husband's  favor. 
The  court  said  that  the  right  to  the  thing 
in  action  vested  in  the  husband  before  ad- 
ministration teas  taken  out,  and  that  the 
wife's  administrator  (other  than  the  hus- 
band) acts  as  trustee  for  the  husband.  See 
also  Betts  v.  Kimpton,  2  B.  &  Ad.  273  ; 
Proudley  v.  Fielder,  2  My.  &  K.  57.  The 
trust  element  in  favor  of  the  husband's 
representatives,  though  the  representatives 
of  the  wife  must  sue,  was  treated  with  great 
clearness  by  Lord  Texterden  in  B<  tts  v. 
Kimpton,  supra,  276.  The  same  rule  was 
extended  to  personal  property  held  by  the 
wife  in  equity  for  ' '  her  sole  and  separate 
use."  On  her  death,  it  passed  to  her  hus- 
band. Proudley  v.  Fielder,  supra,  57,  58. 
2  Robins  V.  ilcClure,  100  N.  Y.  328. 


196  THE    LAW    OF   PEESONS. 

The  right  of  tlic  husband  to  these  depends  on  special  rules.  The 
husband  is  so  far  owner  that  he  can  dispose  of  tliem  as  he 
pleases,  by  act  taking  effect  in  his  lifetime.  He  cannot  leave 
them  to  a  legatee  by  his  will,  to  the  prejudice  of  his  wife's  claim, 
if  she  survive.  On  the  death  of  either,  if  the  lease  be  then  vested 
in  the  wife,  it  belongs  absolutely  to  the  survivor.^ 

(6)  Tangible  j^ersonal  propertT/.  This  vests  in  the  husband  at 
the  moment  of  the  marriage,  wherever  the  property  may  be.  Re- 
duction to  possession  is  not  necessary.  This  rule  does  not  include 
property  held  in  trust  or  under  any  fiduciary  relation,  though  he 
may  in  some  instances  perform  trusts  in  his  wife's  behalf,  —  as,  for 
example,  he  may  act  as  administrator  where  she  is  entitled  to  be 
administratrix.  Where  tlie  husband  acts  in  this  manner  and 
wastes  the  trust  estate,  he  is  technically  guilty  of  a  "  devastavit," 
and  her  separate  estate  will  be  liable,  since  it  is  said  to  be  an 
"  act  of  folly  on  her  part  to  marry  a  man  who  would  waste  trust 
property."  The  legatees  will  be  held  to  dihgence  in  pursuing 
their  remedy  against  lier.^  He  also  is  liable  for  breach  of  trust 
committed  by  her  whether  before  or  after  marriage.^  While  they 
both  live,  they  may  be  sued  jointly  for  waste  committed  by  her, 
and  his  estate  may  thus  be  made  chargeable  as  well  as  hers.'^  If 
he  die  first,  his  assets  will  continue  chargeable  in  equity.^ 

Subsection  II.  Statutory  changes.  —  An  important  preliminary 
remark  is,  that  the  statutes  regulating  this  subject  cannot  consti- 
tutionally interfere  with  vested  rights.  Any  interest  tliat  had 
been  actually  acquired  by  the  husband  by  force  of  the  marriage 
would  still  remain  vested  in  him.*^  The  rules  of  the  statutes 
could  be  applied  to  property  of  the  wife  acquired  after  the  statutes 
took  effect,'^  without  reference  to  the  question  whetlier  the  parties 
were  or  were  not  married  before  their  enactment.  The  right  of 
the  husband  to  take  the  wife's  estate  is  not  an  incident  of  the 
marriage  contract,  but  is  derived  from  a  rule  of  law ;  and  this  rule 
can  at  any  time  be  abrogated  by  the  legislature  if  there  be  no 
interference  with  vested  rights.  The  legislation  upon  this  topic  is 
very  extensive  and  radical,  both  in  England  and  in  a  number  of 
the  States  in  this  country.  The  details  must  be  sought  in  treatises 
upon  this  subject.    The  general  result  may  be  indicated  in  the  fol- 


1  Moody  V.  Matthews,  7  Ves.  174,  183  ;  *  Bunce   v.    Vander  Grift,  supra,  and 
Wildman  v.  Wildman,  9  Ves.  174,  177  ;  cases  cited. 

Li  re  Bellamy,  L.  R.  25  Ch.  D.  620.  5  i^. 

2  Adair  v.  Shaw,   1  Sch,  &  Lef.  243;  6  Westervelt  v.  Gregg,  12  N.  Y.  202; 
Clough  V.  Bond,  3  M.  &  C.  490,  497;  Bunce  Norris  v.  Beyea,  13  N.  Y.  273. 

V.  Vander  Grift,  8  Paige,  37.  7  Thurber  v.  Townsend,  22  N.  Y.  517. 

3  Bunce  v.  Vander  Grift,  supra. 


HUSBAND    AND    WIFE.  197 

lowing  propositions,  observing  the  same  order  used  in  treating  of 
the  rules  of  the  common  law. 

(1)  The  husband,  where  this  legislation  prevails,  has  no  longer 
an  estate  for  life  in  the  wife's  estate  in  lands  held  in  fee.  He 
cannot  take  to  his  own  use  the  rents  and  profits  while  he  lives. 
He  is,  however,  according  to  the  New  York  authorities,  tenant  by 
the  curtesy  after  the  wife's  death,  as  at  common  law,  unless  she 
conveys  her  property  or  disposes  of  it  by  will  in  a  manner  incon- 
sistent with  his  claim.i  (a) 

(2)  Similar  rules  apply  to  the  wife's  life  estate  in  land.  He 
would  have  no  interest  in  it,  nor  in  her  estate  for  the  life  of 
another,  except  that  if  she  died  owner  and  without  a  will  he 
might  take  it  as  her  successor. 

(3)  This  general  legislation,  emancipating  the  wife's  property 
from  the  husband's  owmership  and  control,  does  not  affect  an 
estate  "by  the  entirety."  It  still  remains  true  that  there  is  a 
theoretical  unity  between  the  husband  and  wife  sufficient  to  sus- 
tain this  estate.     Accordingly,  it  remains  as  at  common  law.^  (b) 

(4),  (5),  and  (6).  The  wife's  rights  of  action,  chattels  real, 
and  personal  property  may  be  grouped  together  for  the  purposes 
now  under  consideration.  In  each  the  wife  is  owner,  without  any 
right  of  control  on  the  husband's  part,  and  may  sell  or  bequeath 
them.  If  she  die  owner,  and  without  a  will,  the  husband  becomes 
administrator,  and,  after  the  payment  of  her  debts,  retains  the 
residue  for  his  own  benefit,  except  so  far  as  there  may  be  special 
legislation  to  the  contrary.  It  was  not  the  object  of  the  statutes 
to  disturb  the  course  of  succession  to  the  wife's  property ,3  but 
rather  to  give  her  the  absolute  control  over  it,  if  she  saw  fit  to 
exercise  it. 

This  subject  has  had  much  attention  in  the  New  York  courts, 
for  it  was  urged  against  the  husband's  right  that  his  title  at 
common  law  depended  upon  his  being  administrator  upon  his 
wife's  estate,  and  that  as  the  statute  requiring  him  to  take  out 
letters  of  administration  upon  her  estate  had  been  repealed,  his 

1  Hatfield  V.  Snedeu,  54  N.  Y.  280.  34   Hun,    487;    Zorntlein    i;.  Bram,    100 

2  Bertles  v.  Nuiiaii,  92  N.  Y.  152.     In     N.  Y.   12. 

this  case  the  subject  of  the  continuance  of  »  McCosker  v.   Golden,   1    Bradf.    64  ; 

the  doctrine  of  the  unity  of  husband  and  Lush   v.    Alburtis,    Id.   456;    Ransom   v. 

wife,  notwithstanding  legislative  action,  is  Nichols,  22  N.  Y.  110. 
considered,  pp.  159,  160  ;  Brani  v.  Bram, 


(a)  In   England,    notwithstanding  the  {b)  Stelz   v.   Shreck,   128  N.   Y.  263  ; 

Married  Women's  Property  Act  of  1882,  a     Miner  v.  Brown,  133  N.  Y.  308  ;  Hiles  v. 
husband  is  still  entitled  on  his  wife's  death     Fisher,  67  Hun,  229. 
to  an  pstate  by  the  curtesy.     Hope  v.  Hope 
[1892],  Ch.  336. 


198 


THE   LAW   OF   PERSONS. 


title  to  her  personal  assets  by  succession  could  no  longer  be 
maintained.  The  common-law  rule  has  been  examined  already, 
and  it  has  been  shown  that  the  husband's  rights  to  his  wife's 
personal  estate  by  succession  do  not  depend  upon  his  being 
administrator,  but  upon  a  general  rule  of  substantive  law.  The 
principal  decisions  to  this  effect  will  be  found  in  a  note.^  The 
right  of  the  husband  to  take  the  wife's  estate  by  succession  has 
been  so  far  modified  in  New  York^  as  to  provide  that  if  she  leave 
surviving  descendants,  and  the  husband  survive,  he  has  the  same 
distributive  share  in  the  wife's  personal  property  as  a  widow  has 
in  her  husband's  personal  estate.^  (5) 

Section  II.  The  duties  or  obligations  tvliich  the  husband  assumes 
hy  the  marriage. 

Subsection  I.  To  jya?/  the  ivife''s  a7ite-nuptial  debts.  —  At  com- 
mon law  this  obligation  arises  from  the  rule  that  the  legal 
existence  of  the  wife   is  merged   in   that  of  the   husband.     The 


1  Eansoin  v.  Nichols,  s^ipra ;  Ryder  v. 
Hulse,  24  N.  Y.  372  ;  Olmsted  v.  Keyes, 
8.5  N.  Y.  593,  602  ;  Robins  v.  McClure, 
100  N.  Y.  328.  In  this  last  case  it  was 
held  that  the  fact  that  the  husband  was 
appointed  executor,  and  t^ualified  as  such, 
did  not  affect  his  rights. 

2  Laws  of  1867,  ch.  782 ;  2  R.  S.  98,  §  79. 

3  The  principal  New  Yoik  statutes 
affectinsf  the  j'ight  of  a  married  woman  to 
hold  and  disy)ose  of  property  are:  Laws  of 
1848,  ch.  200  ;  Laws  of  1849,  ch.  375  ; 
Laws  of  1860,  ch.  90  ;  Laws  of  1862,  ch. 
172.  Capacity  to  make  contracts  is  con- 
ferred by  Laws  of  1884,  ch.  3S1,  §  1  {a). 
There  is  a  compivhensive  and  carefully 
drawn  statute  in  England,  45  &  46  Vict. 
c.  75,  1882,  making  very  radical  changes 
in  the  legal  rules  previously  governing 
the  relation  of  husband  and  wiie.  This 
act  will  be  referred  to  hereafter.  As 
far  as  property  is  concerned,  it  declares 
that  the  wife  shall  hold  as  her  own 
all  real  and  personal  property  which  be- 


(a)  By  Laws  of  1S92,  ch.  594.  amending 
Laws  of  1884,  ch.  381,  a  married  woman 
may  now  contract  with  her  husband  as  well 
as  with  third  persons,  exceyit  to  alter  or  dis- 
solve the  marriage  relation  or  to  relieve 
the  husband  from  liability  to  support  her. 
For  other  statutes,  see  Laws  of  1887,  ch. 
537,  and  Laws  of  1890,  ch.  51.  By  the 
latter  act  a  married  woman  is  given  a  right 
of  action  in  her  own  name  for  injuries  to 


longed  to  her  at  the  time  of  her  marriage, 
and  all  acquired  after  marriage,  including 
wages,  earnings,  money,  and  property 
gained  or  acquired  by  her  in  any  employ- 
ment, trade,  or  occupation  in  which  she  is 
engaged,  or  which  she  carries  on  separately 
from  her  husband,  or  hy  the  exercise  of 
any  literary,  artistic,  or  scientific  skill. 
(§2.)  The  intervention  of  a  trustee  is 
not  necessary  to  the  acquisition  of  prop- 
erty. (§1.)  She  is  allowed  the  same 
civil  remedies  against  all  persons,  including 
her  husband,  for  the  protection  and  secur- 
ity of  her  property  as  a  single  woman,  and 
in  certain  cases  may  cause  criminal  pro- 
ceedings to  be  instituted  against  him  for 
this  purpose.  (§  12.)  The  husband  may 
in  like  manner  cause  criminal  proceedings 
to  he  instituted  against  the  wife.  (§  16.) 
In  these  cases,  each  of  the  parties  may  give 
evidence  against  the  other  (consult  amend- 
ment 47  &  48  Vict.  c.  14,  1884).  These 
statutes  are  called  the  "  Mamcd  Women's 
Projicrty  Acts  of  1882  &  1884." 


property,  person,  or  character,  and  for  in- 
juries arising  out  of  the  marital  relation. 
The  same  act  makes  her  liable  for  torts 
committed  by  her  without  the  husband's 
coercion,  and  relieves  him  from  liability  for 
such  torts.  See  also  Code  Civ.  Pro.  §  450, 
as  amended  by  ch.  248,  Laws  of  1890. 

(h)  If  she  leave  no  descendants,  the 
rule  remains  as  at  common  law.  Robins 
V.  McClure,  100  N.  Y.  328. 


HUSBAND   AND    WIFE.  199 

action  must  be  brought  against  both  and  the  judgment  obtained 
against  both.^  This  fixes  the  husband's  liabiHty,  so  that  if 
the  wife  die  after  judgment  and  before  execution,  the  husband 
will  still  be  liable.  He  cannot  set  up  the  defence  of  infancy ;  if 
he  could,  there  would  be  no  mode  of  collecting  the  debt,  as  the 
wife  cannot  (at  common  law)  be  sued  alone.^  The  action  must 
be  brought  and  carried  forward  to  judgment  while  the  wife  lives, 
so  that  if  she  die  during  the  progress  of  the  action  and  before 
judgment,  he  is  discharged  as  husband}  These  rales  are  applied 
without  reference  to  the  question  whether  the  husband  receives 
property  by  his  wife  or  not.  They  depend  upon  the  theoretic 
unity  of  the  parties.  The  husband  may  still  be  liable  after  the 
wife's  death  as  administrator  upon  her  estate,  but  then  only  as 
to  assets  received  by  him  in  that  character. 

The  wife  in  all  such  cases  is  the  true  debtor.  She  may  be 
sued  alone  after  the  husband's  deaths  A  question  has,  however, 
been  raised  whether,  after  the  husband's  bankruptcy,  property  set- 
tled upon  her  to  her  sole  and  separate  use  can  be  taken  by  a 
creditor  to  pay  her  debt  contracted  before  marriage.  It  is  assumed 
in  this  inquiry  that  the  husband  is  living.  The  solution  of  this 
question  depends  on  the  true  theory  of  the  liability  of  a  married 
woman's  "  separate  estate  "  for  the  payment  of  her  debts.  The 
old  doctrine  was  that  such  an  estate  can  only  be  made  liable  by 
an  "  appointment "  on  her  part.  Opinions  diverge  as  to  whether 
the  mere  creation  of  the  debt  before  marriage  can  be  treated  as 
an  implied  appointment  binding  the  estate  after  marriage.  That 
is  the  view  in  the  English  cases,  in  which  implications  have  been 
pressed  very  f ar.^  The  New  York  court  held  under  a  similar 
state  of  facts  that  the  wife  was  not  liable,  since  there  was  no 
sufficient  evidence  of  intention  on  her  part  to  charge  the  debt 
upon  her  separate  estate.^  The  New  York  doctrine  was  cited 
recently  to  the  English  court  of  equity,  but  it  was  not  followed." 

By  statute  it  has  been  provided  in  New  Yoi-k  that  while  the 
action  for  the  wife's  debts  contracted  before  marriage  is  still 
to  be  brought  against  both  husband  and  wife,  yet  that  the  judg- 

1  Mitcliinsou  v.  Hewson,  7  Term  R.  general  subject  of  the  wife's  liability  after 
34-1.  her  husband's  death. 

2  Roach  V.  Quick,  9  AVend.  238.  ">    Chubb  v.  Stretch,  supra,  pp.  558,  561. 

3  Williams  v.  Kent,  15  Wend.  360.  In  this  case  there  was  some  evidence  that 
*  Woodman  v.  Chapman,  1  Camp.  189.  Mrs.  Stretch  settled  the  property  on  herself 
^  Chubb  V.  Stretch,   L.  R.  9  Eq.  555  ;     to  her  separate  use  to  avoid  her  creditors ; 

s.  c.  39  L.  J.  Ch.  329  ;  Biscoe  v.  Kennedy,  still,  the  bill  did  not  seek  to  set  aside  the 

1  Brown  Ch.  17  u.  settlement  as  a  fraud  on  creditors.     See  39 

6  Vanderheyden  v.   Mallory,   1  N.  Y.  L.  J.  Ch.  329.     It  was  decided  on  general 

452.     There  are  dicta  in  this  case  on  the  principles  of  law. 


200  THE    LAW    OF   PEESONS. 

merit  and  execution  only  affect  her  separate  estate,  unless  the 
husband  has  acquired  her  property,  in  which  case  he  is  liable  to 
the  extent  of  the  assets  received  from  her.i  This  legislation  does 
not  apply  to  debts  of  this  class  contracted  before  the  statute, 
assuming  that  the  parties  were  then  married.^  A  similar  statute 
exists  in  England.^ 

Subsection  II.  Duty  or  obligation  of  support  or  maintenance.  — 
It  is  the  legal  duty  of  a  husband  to  maintain  his  wife  in  accord- 
ance with  her  station.  This  duty  grows  out  of  the  contract  of 
marriage,  which  is  deemed  to  be  a  continuing  contract,  from 
which  recurring  obligations  spring.  His  obligation  may  also  be 
referred  to  the  fact  of  cohabitation  when  the  parties  live  together. 
In  this  point  of  view,  a  man  may  become  liable  to  support  a  woman 
who  is  not  his  wife.  This  is  an  instance  of  estoppel.  This  lia- 
bility may  be  terminated  by  a  discontinuance  of  cohabitation, 
while  the  duty  to  maintain  a  wife  cannot  be  removed  by  any 
act  of  the  husband. 

The  ordinary  way  in  which  a  wife  may  make  her  husband  liable 
is  by  incurring  bills  for  necessaries  with  tradesmen  and  others, 
who  may  then  sue  the  husband  on  the  theory  of  an  implied  con- 
tract. This  action  may  be  resorted  to  for  the  purpose  of  testing 
the  validity  of  a  contested  marriage,  since  the  alleged  husband's 
liability  where  there  is  no  cohabitation  or  recognition  depends  on 
the  question  whether  the  parties  are  in  fact  married.* 

The  circumstances  under  which  the  liability  of  the  husband 
may  arise  are  various. 

(1)  Wliere  the  parties  cohabit.  Where  a  husband  and  wife 
live  together,  and  he  makes  her  a  sufficient  allowance  for  dress, 
etc.,  he  is  not  in  general  liable  for  necessaries  supplied  to  her 
without  his  knowledge.^  (a)  The  question  whether  goods  sup- 
plied in  such  a  case  are  necessaries  suitable  to  her  "  estate  and 

1  Laws  of  1853,  cli.  576,  Rev.  St.  (8tli  Law  E.  188.  The  object  of  the  action  in 
ed. )  p.  2602.  this  instance  was  to  determine  the  validity 

2  Berley  v.  Rampacher,  5  Duer,  18-3.  of  the  alleged  marriage  of  Major  Yelvevton, 

3  37  &  38  Vict.  c.  50,  and  45  &  46  Vict,  the  plaintiff  having  supplied  the  alleged 
c.  75,  §  14.    The  rule  is,  however,  extended  wife  with  board,  lodging,  etc. 

to  wrongs  committed  by  her  before  max--  ^  Reneaux   v.    Teakle,    8    Exch.    680  ; 

riage  as  well  as  to  contracts  made  prior  to  Jolly  v.  Rees,  15  C.  B.   N.  s.  628;    De- 

that  time.     See  Bell  v.  Stocker,  L.  R.  10  benham  v.  Mellon,  L.  R.  5  Q.  B.  D.  394  ; 

Q.  B.  D.  129  as  to  37  &  38  Vict.  on  appeal,  6  App.  Cases,  24. 
*  Thelwall  v.  Yelverton,  14  Irish  Com. 


(«)  In   several    of   the    United    States  See  Revised   Code  of  Iowa,  §  2214  ;   Rev. 

statutes  have  been  passed  making  "  family  Statutes  of  Illinois,  ch.  68,  §  15.  See  Illing- 

expenses "  chargeable  upon  the  property  of  worth  v.  Barley,  33  111.  App.  394;  Laws 

both  husband  and  wife.    For  these  expenses  of  Oregon  (Hill),  §2874. 
they  may  be  sued  either  jointly  or  severally. 


HUSBAND   AND    WIFE.  201 

degree  "  depends  partly  on  the  rate  at  which  he  lives  and  allows 
her  to  live,  and  partly  on  the  supply  of  similar  articles  which  she 
may  have  had  on  hand  when  ordering  the  goods  in  question. ^ 
There  are  two  quite  distinct  classes  of  questions  :  one,  whether 
he  would  be  liable  by  a  mere  rule  of  law  without  any  assent  on 
his  part,  or  even  against  his  assent ;  the  other,  whether  if  he 
assented  by  approving  of  her  purchases,  or  if  he  had  had  know- 
ledge of  them  and  did  not  dissent,  he  v/ould  be  liable  without 
reference  to  the  point  whether  the  goods  purchased  were  in  fact 
necessaries.  In  reading  the  decisions  great  care  must  be  taken 
to  keep  this  distinction  steadily  in  view. 

Attending  to  the  first  question  at  the  outset,  it  is  a  settled  rule 
that  if  a  tradesman  supply  a  wife  clandestinely  with  such  arti- 
cles as  jewelry  unjiecessary  for  her  station  in  life,  and  there  is 
no  evidence  of  the  husband's  assent,  he  is  not  liable.^  In  any 
event  the  tradesman  cannot  sue  in  an  action  m  a  court  of  law  for 
money  lent  wherewith  to  buy  necessaries.  She  has  no  implied 
authority  to  borrow  money  on  the  husband's  credit.^  (a)  Still,  a 
money-lender  would  have  a  remedy  in  a  court  of  equity  for  such 
part  of  the  borrowed  money  as  she  actually  applied  to  the  pur- 
chase of  necessaries.  The  lender  in  such  a  case  is  allowed  in 
equity  to  stand  in  the  same  position  as  the  tradesman,  and  to 
recover  under  the  same  circumstances  as  he  could  recover  in  case 
he  had  sold  the  goods  to  her  on  credit.^ 

As  to  the  second  inquiry,  it  is  clear  that  it  is  a  mere  question 
of  fact.  A  husband  may  by  assent  impliedly  authorize  a  wife  to 
purchase  goods  for  her  use,  even  though  of  a  highly  extravagant 
kind,  which  she  would  have  no  authority  to  purchase  as  neces- 
saries against  his  consent.^ 

It  is  a  further  rule,  when  goods  are  necessaries,  that  the  credit 
must  be  given  to  the  husband.  If  it  be  given  to  the  wife,  to  the 
exclusion  of  the  hushcuuVs  liability/,  the  tradesman  cannot  recover 
fi-om  the  husband.6  The  facts  of  the  case  must  be  plain,  or  the 
husband  will  not  be  relieved  on  this  ground." 

The  term  "  necessaries  "  is  to  some  extent  of  fluctuating  mean- 
ing, and  depends  largely  on  the  circumstances  of  each  case.    What 

1  Morgan  v.  Chetwynd,  4  F.  &  F.  4.51  ;  s.  c.  7  Jur.  x.  s.   875  ;  Deare  v.  Soutten, 

CocKBURN,  Ch.  J.  L.  R.  9  Eq.  1.51. 

^  Montague  u.  Benedict,  3  B.  &C.  631;  5  Waithman    v.    Wakefield,    1    Camp. 

s.  c.  Montague  v.  Baron,  5  D.  &  R.  532.  120  ;  Reid  v.  Teakle,  13  C.  B.  627. 

3  Knox  V.  Busliell,  3  C.  B.  n.  s.  334 ;  6  Bentley  v.  Griffin,  5  Taunt.  356. 
Paule  V.  Goding,  2  F.  &  F.  585.  7  Jewsbury  v.  Newbold,  26  L.  J.  Exch. 

4  Jenner  v.  Morris,  3  De  G.  F.  &  J.  45  ;  247. 


(a)  Anderson  v.  CuUen,  16  Daly,  15. 


OQ2  THE   LAW   OF   PERSONS. 

may  be  "  necessaries  "  under  one  state  of  facts  will  not  be  under 
another.  Suitable  food,  clothing,  shelter,  and  medical  attendance 
would  be  or  ought  to  be  deemed  necessaries  for  all.  Furniture 
has  been  regarded  as  falling  under  this  head.^  In  certain  cases, 
costs  and  expenses  of  legal  proceedings  might  be  included,  as 
where  he  had  committed  or  threatened  to  commit  acts  of  personal 
violence  upon  her,  and  she  had  resorted  to  legal  proceedings  for 
her  protection  against  such  wrongful  acts  or  threats.^  The  Eng- 
lish cases  hold  that  if  the  wife  has  reasonable  grounds,  in  order 
to  protect  herself  from  injuries,  to  apply  for  a  limited  divorce,  the 
husband  will  be  liable  for  the  necessary  expenses  in  an  action 
on  an  implied  contract.^  (a)  This  rule  would  not  include  pro- 
ceedings to  punish  the  husband,  for  these  could  not  be  placed 
under  the  head  of  "necessaries." 

A  question  has  been  raised  in  England  as  to  whether  the  hus- 
band is  bound  to  pay  one  who,  on  his  refusal,  pays  the  funeral 
expenses  of  his  deceased  wife.  It  was  decided  that  he  is  under  a 
legal  duty  to  provide  for  her  suitable  interment,  and  upon  his 
neglect  of  it  a  third  person  may  pay  the  expenses  and  collect 
them  from  the  husband  by  action,  on  the  theory  of  an  implied 
contract.* 

It  is  no  defence  to  an  action  for  necessaries  that  the  husband  is 
a  lunatic.  The  authority  of  a  wife  to  pledge  the  husband's  credit 
is  substantially  the  same,  whether  the  husband  be  a  lunatic  or 
not.  ^ 

(2)  Desertion  hy  the  husband.  Desertion  by  the  husband  does 
not  relieve  him  from  liability.  If  she  be  unprovided  for,  a  party 
may  supply  her  with  necessaries,  or  even  with  money,  if  she  apply 
it  to  her  support.  The  husband  will  be  liable  in  equity  in  the 
latter  case.^ 

(3)  JiJxpulsion  of  the  infefrom  the  husbaneVs  home.  Where  the 
wife  is  without  fault  and  the  husband  compels  her  to  leave  him, 
she  carries  with  her  an  agency  to  obtain  necessaries.     This  is  a 

1  Hunt  V.  De  Blaquiere,  5  Biiig.  550.  Stocken  v.  Patrick,  29  L.  T.  N.  s.  507. 

2  Williams  v.  Fowler,  M'O.  &  Y.  269  ;  *  Ambrose  v.  Kerrison,  10  C.  B.  776  ; 
Turner  v.  Rookes,  10  A.  &  E,  47  ;  Shep-  Bradshaw  v.  Beard,  12  C.  B.  N.  s.  344. 
herd  v.  Mackoul,  3  Camp.  326.                              5  Read  v.  Legard,  6  Exch.  636 ;  Rich- 

3  Brown  v.  Ackroyd,  5  E.  &  B.  819  ;  ardson  v.  Dubois,  18  W.  R.  62. 
Wiisou    V.     Ford,    L.    R.    3   Exch.    63  ;  6  Deare  v.  Soiitten,  21  L.  T.  N.  s.  523. 


(«)  The    authorities    in    the    different  Md.  422  ;  Porter  v.  Briggs,  38  Iowa,  166. 

States  as  to  the  liability  of  the  husband  in  Contra,  Kincheloe  v.  Merriman,  54  Aik. 

an  independent  action  at  law  for  the  ex-  557  ;  Clarke  v.  Burke,  65  Wis.  359  ;  Cooke 

peiises  of  divorce  proceedings  are  not  in  v.  Newell,  40  Conn.  596  ;  Ray  v.  Adden, 

harmony.    That  he  is  liable,  see  Gassettu.  50  N.  H.  82  ;  Dow  v.  Eyster,  79  111.  254. 

Pntten,  23  Kan.  340  ;  Sprayberry  v.  Merk,  See  Bishop  on  Marriarre.Divorce,  and  Sep- 

30  Ga.  81  ;  McCurley  v.  Stockbridge,  62  aration,  Vol.  II.  §  974. 


HUSBAXD   AND   WIFE.  203 

presumption  of  law  incapable  of  being  rebutted.^  She  has  an 
authority  of  necessity  to  pledge  his  credit  for  goods  supplied  to 
hev?  The  rule  will  not  be  affected  by  any  warning  to  tradesmen 
not  to  trust  her,  whether  by  general  advertisement  in  the  news- 
papers or  particular  notice  to  individuals.^  It  is  impossible  for 
him  to  rid  himself  of  his  marital  responsibility  by  violating  his 
duty  towards  her.  Ill  treatment  of  the  wife  will  lead  to  the  same 
result.  Should  he  so  treat  her  that  it  would  be  no  longer  safe  for 
her  to  remain  in  his  house,  she  will  be  justified  in  leaving  it,  and 
will  then  carry  with  her  a  power  to  incur  on  his  credit  bills  for 
her  support  according  to  his  condition.*  Such  conduct  is  equiva- 
lent to  turning  her  out  of  his  house,  and  she  has  remedies  similar 
to  those  which  she  would  have  in  that  case.^ 

It  was  at  one  time  held  that  she  would  not  be  justified  in  leav- 
ing even  though  the  husband  brought  a  mistress  into  the  house.*^ 
This  absurd  proposition  has  since  been  practically  overruled.^ 

(4)  Where  the  tvife  leaves  her  husband  against  his  consent  and 
ivithout  cause.  If  a  wife,  though  virtuous,  leave  her  husband 
ao-ainst  his  consent,  and  without  sufficient  cause,  his  liability  for 
her  support  is  suspended  during  her  absence  ;  ^  but  if  she  offer  to 
return  and  he  refuse  to  receive  her,  his  liability  revives  from  the 
time  of  his  refusal.  This  rule  is  applied  without  reference  to  the 
time  of  absence.  In  one  case  the  wife  was  absent  twelve  years, 
under  aggravating  circumstances.  She  then  unexpectedly  offered 
to  return.  He,  having  declined  to  receive  her,  was  held  liable  for 
her  support.^ 

(5)  Ejf'ect  of  the  adultery  of  the  tvife.  This  inquiry  is  made 
without  reference  to  a  divorce.  The  mere  fact  that  a  wife  is  an 
adulteress  does  not  relieve  the  husband  from  liability.  If  he 
leave  her  in  his  house,  he  will  be  liable  unless  the  tradesmen 
know  the  circumstances  under  which  she  is  living.^*^  So  if  he 
cohabit  with  her,  knowing  her  misconduct.  In  such  a  case  he 
cannot  turn  her  away  for  the  same  cause,  since  there  would  be 
a  condonation  of  the  offence.  But  if  she  leave  his  house  with  an 
adulterer,  he  is  not  bound  to  receive  her  again  ;  and  under  such 
circumstances  she  would  have  no  implied  power  to  pledge  his 

1  Harrison  v.  Grady,  12  Jur.  x.  s.  140.  "  Blowers  v.    Sturtevant,    4   Den.   46  ; 

2  Johnston  v.  Sumner,  3  H.  &  N.  261.  M'Cutdien  v.  M'Gahay,  11  Johns.  281. 

3  Harris  v.  Morris,  4  Esp.  41.  ^  M'Gahay  v.  Williams,  12  Johns.  293. 

4  Emery  v.  Emery,  1  Y.  &  J.  501.  This  rule  would  be  modified  now  by  a  di- 

5  Baker  v.  Sampson,  14  C.  B.  N.  s.  383.  vorce  on  the  ground  of  desertion,  which 

6  Horwood  V.  Heffer,  3  Taunt.  421.  could  not  be  obtained  at  the  time  of  this 
■^  Houliston  V.  Smyth,  3   Bing.    127  ;  decision. 

Sykes  v.  Halstead,  1  Sand.  483  ;  Pomeroy         1°  Norton  v.  Fazan,  1  B.  &  P.  226. 
V.  Wells,  8  Paige,  406. 


204  THE   LAW   OF   PERSONS. 

credit  with  tradesmen.  They  would  be  regarded  as  having  legal 
notice  by  reason  of  her  separation  from  him  of  the  gromids  of 
her  absence.  Actual  notice  would  not  be  necessary .1  It  has  been 
decided  that  in  such  a  case  the  adultery  may  be  proved  by  the 
testimony  of  the  wife.^ 

(6)  Separation  by  mutual  consent  and  without  divorce.  This 
proposition  includes  the  case  where  the  husband  and  wife,  being 
unable  to  agree  or  to  live  together,  enter  into  an  agreement  to 
live  apart,  and  carry  the  agreement  into  practical  effect  by  sepa- 
rating. It  is  usual  in  such  a  case  to  make  definite  provision  for 
the  wife's  support.  The  nature  and  manner  of  entering  into  such 
an  agreement  will  be  noticed  hereafter.  The  general  rule  is  that 
if  it  be  faithfully  kept  by  the  husband,  the  wife's  implied  authority 
to  bind  him  for  necessaries  is  suspended  during  its  continuance. 
Here,  too,  tradesmen  are  legally  bound  to  know  the  reasons  why 
the  parties  live  apart,  and  actual  notice  to  them  is  immaterial.^ 
If  no  means  are  provided  for  the  wife,  and  she  cannot  maintain 
herself,  it  may  properly  be  inferred  that  the  husband  intended  to 
allow  her  to  pledge  his  credit.*  If  an  allowance  is  made  by 
mutual  stipulations,  she  cannot  pledge  his  credit  on  the  plea  that 
it  is  inadequate  to  her  wants.  Her  agreement  will  stand  in  the 
way  of  any  such  claim.^  If,  however,  the  stipulated  allowance 
is  not  paid,  her  authority  to  bind  him  will  revive,  to  be  suspended 
again  on  the  resumption  of  the  payment.^  (a) 

The  question  remains  whether  there  is  any  other  mode  whereby 
the  wife  may  obtain  support  except  by  pledging  the  husband's 
credit  (actions  for  divorce  not  being  referred  to  in  this  inquiry). 
It  has  been  decided  in  New  York  that  the  superintendents  of 
the  poor  cannot  apply  to  the  criminal  court  (Court  of  Sessions) 
for  a  summary  remedy  which  may  be  resorted  to  in  cases  where 
parents  or  children  do  not  support  their  relatives,  since  the  wife 
is  not  a  relative  in  the  sense  of  the  poor  law.'''  The  regular 
remedy  is  to  pledge  the  husband's  credit.  An  action  in  equity 
will  not  lie  to  enforce  the  husband's  liability  except  in  aid  of  the 
regular  action  where  judgment  has  been  obtained  and  not 
collected.^  Where,  however,  the  husband  absconds  from  his 
wife,  leaving  her  chargeable  on  the  public  for  support,  his  prop- 

1  Cooper    V.     Uojd,    6    C.    B.    N.    s.  5  Bjffi,!  y,   Bigiiell,   7  H.   &  N.    8?7  ; 

519.  Willson  v.  Smyth,  1  B.  &  Ad.  801. 

^  Id.  6  Hunt  V.  DeBlaquiere,  5  Bing.  550. 

3  Mizen  v.  Pick,  3  M.  &  W.   481.  7  Ponun-oy  v.  Wells,  8  Paige,  406. 

*  Ross  V.  Ross,  69  111.  569  ;  Emmet  v.  8  Griffin  v.  Griffin,  47  N.  Y.  134  ;    Er- 

Norton,  8  C.  &  P.  506.  kenbrach  v.  Erkenbrach,  96  N.  Y.  456. 

(a)  McKinney  v.  Guhman,  38  Mo.  Apji.  344. 


HUSBAND   AND    WIFE.  205 

erty  mav  be  seized  and  appropriated  to  her  maintenance.^  Stat- 
utory provisions  sometimes  give  summary  proceedings  in  sucli 
cases  and  inflict  penalties.^ 

Snbsection  III.  Liahility  for  the  u'lfe's  torts  or  wrongs.  —  There 
are  two  cases  falling  under  this  head  :  one  is  where  the  wrong  is 
committed  before  marriage,  and  the  other  after  marriage. 

I.  Wliere  the  ivife  commits  an  actionable  wrong  before  marriage. 
In  tliis  case  the  husband  is  liable  on  substantially  the  same 
principle  as  that  which  makes  him  responsible  for  the  perform- 
ance of  her  contracts.  They  must  be  united  as  defendants  in 
the  action ;  judgment  will  be  obtained  against  both  by  name. 
If  the  judgment  is  regularly  enforced  by  imprisonment,  he  must 
endure  it,  for  tlie  court  will  not  leave  her  in  prison  alone.  If 
the  tort  be  personal,  such  as  an  assault  and  battery,  libel  or 
slander,  the  action  must,  to  bind  him,  be  brought  and  judgment 
recovered  while  both  live.  Should  he  survive  her,  he  will  not  be 
liable  as  her  administrator,  for  such  a  cause  of  action  dies  with 
the  person,  though  she  would  be  liable  if  she  survived  him.-^ 

II.  A  wrong  committed  by  the  wife  after  marriage.  There 
are  two  instances  under  this  head.  {A)  Where  the  wrong  was 
committed  by  the  husband's  order  and  in  his  presence.  In  this 
case  it  is  his  wrong,  and  he  alone  is  liable.  He  could  be  sued 
for  it  after  her  death.^  {B)  Where  the  act  is  not  committed  in 
his  presence  and  by  his  direction,  the  wrong  is  hers,  and  he  may 
be  sued  for  it,  but  in  this  case  with  the  wife  as  a  co-defendant.^ 
In  order  to  make  him  personally  liable,  judgment  must  be  ob- 
tained during  the  wife's  life.  She  will  remain  liable  for  the 
wrong  as  the  author  of  it  after  his  death,  {a) 

Since  the  wife  has  become  by  modern  statutes  the  owner  and 
manager  of  her  separate  estate,  new  questions  have  arisen  as  to 

1  See  N.  Y.  Code  Crim.  Pro.  §  921.  ^  The  general  rule  has  not  been  abol- 

2  See,  in  England,  5  Geo.  IV.  c.  83,  ished  in  New  York.  Fitzgerald  v.  Quann, 
§  3  ;  31  &  32  Vict.  c.  122,  §  33.     In  New     109  N.  Y.  441. 

York  a  husband  who  actually  abandons  his  *  Cassin  v.  Delany,  38  N.  Y.  178. 

wife  without  adequate  support,  or  leaves  her  ^  Fitzgerald  y.  Quann,  109  N.  Y.  441; 

in  danger  of  becoming  a  burden  upon  the  Mangam  v.  Peck,  111  N.  Y.  401.     The  rule 

public,  is  declared  to  be  a  "  disorderly  per-  was  applied  in  this  last  case  to  fraud  on 

son,"  and  is  brought  under  the  supervision  the  wife's  part. 
of  magistrates.     Code  of  Crim.  Pro.  §  899. 

(a)  This  rule  is  now  changed  in  New  husband  ;  and  such  coercion  or  instigation 

York  by  statute.    See  Laws  of  1890,  ch.  51,  must  be  proved  in  the  same  manner  as  any 

§  2.     "A  husband  shall  not  be  liable  in  other  fact  is  required  to  be  proved ;  but 

damages  for  his  wife's  wrongful  or  tortious  in  all  cases  embraced  in  this  section  the 

acts,  nor  for  injuries  to  person,  property,  wife   shall   be   personally  liable    for    her 

or  the  marital  relation,  caused  by  the  acts  wrongful  or  tortious  acts."     See  also  Code 

of  his  wife,  unless  the  said  acts  were  done  of  Civ.  Pro.  §  450,  as  amended  by  Laws 

by  actual   coercion  or  instigation  of  the  of  1890,  ch.  248. 


206  THE   LAW   OF   PERSONS. 

her  liability  for  injuries  committed  in  the  course  of  its  manage- 
ment. Thus  it  has  been  held  in  New  York  that  as  the  husband 
has  no  longer  any  interest  in  his  wife's  land,  she  will  be  liable 
alone  for  the  trespasses  of  her  cattle  straying  from  her  land,  and 
doing  damage  to  tlie  property  of  others.^  (a) 

Leaving  out  of  view  such  special  questions  as  these,  it  still 
appears  to  be  true  that  the  husband  is  liable  with  the  wife,  or 
alone,  as  the  case  may  be,  for  all  her  personal  torts,  notwith- 
standing recent  legislation,  {h)  That  has  not  yet  gone  so  far  as 
to  destroy  the  legal  unity  of  husband  and  wife.^  Accordingly,  a 
married  woman  cannot  bring  an  action  against  her  husband  for 
an  injury  to  her  person  and  character,  although  she  now  may  do 
so  in  her  own  name  for  any  such  injury  by  a  third  person,  nor 
can  she  be  sued  for  such  a  cause  of  action  without  making  him 
a  co-defendant.^  (c) 

Subsection  IV.  Liability  for  the  ivife's  crimes.  —  A  distinction 
is  taken  between  crimes  of  the  higher  grade,  such  as  treason, 
murder,  and  robbery,  and  those  of  an  inferior  rank.  When  a 
wife  commits  an  offence  of  the  first  class,  she  is  liable  to  convic- 
tion, and  cannot  shield  herself  by  the  plea  that  she  obeyed  the 
command  of  her  husband.  In  the  other  class  of  cases  the  pre- 
vailing rule  is  that  if  the  offence  is  committed  in  the  presence 
of  her  husband  she  is  presumed  to  be  under  coercion,  and  conse- 
quently not  responsible.  This,  however,  is  only  a  presumption, 
and  it  may  be  repelled  by  evidence  that  the  husband  did  not  com- 
mand the  commission  of  the  offence.  Under  such  circumstances, 
she  alone  will  be  liable.*  {cl) 

Section  III.     Tlie  capacity  of  the  ivife  to  make  contracts. 

Subsection  1.  At  common  laiv.  —  It  is  a  general  rule  of  the 
common  law  that  a  wife  cannot  bind  herself  by  contract.  Thus 
the  promissory  note  (independent  of  statute)  made  by  a  married 
woman  is  absolutely  void.^     The    first   statutes   in   New  York 

1  Rowe  V.  Smith,  45  N.  Y.   230.  Martin  v.  Robson,  65  111.  129,  contra.     In 

2  See  remarks  of  the  court  in  Bertles  v.  England  the  husband  is  not  liable  for  the 
Nunan,  92  N.  Y.  159,  160.  wife's  torts  committed  after  marriage.    45 

3  Fitzgerald  v.  Quann,  33  Hun,  652  ;  &  46  Vict.  c.  75. 

affirmed  in  109  N.  Y.  441.     This  decision  *  Under  the  Penal  Code  of  New  York, 

was  placed  upon  the  ground  that  statutes  §24,  "it  is  not  a  defence  to  a  married 

in  derogation  of  the  common  law  are  to  be  woman  charged  with  crime  that  the  al- 

construed  strictly,  and  they  were  not  suffi-  leged  criminal  act  was  committed  by  her 

ciently  clear  to  show  an  intention  to  ab-  in  the  presence  of  her  husband." 
rogate   the  common-law  rule.      But    see  ^  Yale  v.  Dederer,  ]  8  N.  Y.  265. 


(a)  Quilty  u.  Battle,  135  IS^.  Y.  201.  (c)  See  in  New  York,  Laws  of  1890, 

{h)  See,  however,  as  to  the  present  law     ch.  51,  §  2. 
in  New  York,  ante,  p.  205,  note  (a).  (d)  United  States  v.  Terry,  42  Fed.  R. 

317. 


HUSBAND    AND    WIFE.  207 

enlarging  the  wife's  capacity  to  act  did  not  give  her  power  to 
make  contracts.  She  only  came  within  the  purview  of  those 
acts  when  she  had  a  separate  estate.^  Without  that,  she  was 
left  in  the  same  position  as  at  common  law.  Later  statutes 
have  been  more  liberal.  ^  (a) 

The  disability  to  contract  is  not,  says  Lord  Hardwicke,  for 
want  of  judgment,  but  because  she  is  under  the  power  of  her 
husband.3  To  this  general  rule  of  incapacity  there  are  several 
exceptions,  a  number  of  which  have  been  long  rooted  in  the  law. 

Exception  L  A  wife  may  acquire  real  estate  by  purchase,  but 
cannot  hold  it  against  her  husband's  consent.  At  his  death 
she  has  the  capacity  to  disagree  to  such  a  purchase  or  to 
affirm  it. 

Exception  IL  At  a  very  early  period  she  was  able  to  convey 
her  real  estate  by  a  fictitious  proceeding  of  a  judicial  nature, 
termed  a  "  fine. "  An  action  was  assumed  to  be  brought  by  an 
intending  purchaser  which,  in  form,  included  as  defendants 
both  the  husband  and  wife.  In  this  proceeding  it  was  claimed 
that  the  land  belonged  to  the  plaintiff  (the  purchaser).  The 
husband  and  wife  appeared  in  court  and  had  an  admission 
entered  on  the  records  that  the  land  did  not  belong  to  them,  and 
that  the  plaintiff  was  the  owner.  This  fact,  by  a  technical 
doctrine  (estoppel),  precluded  them  from  claiming  the  estate  in 
opposition  to  the  record  in  court.*  The  practical  result  was 
that  the  purchaser  became  the  owner.  Safeguards  were  adopted 
as  early  as  the  reign  of  Edward  I.  to  prevent  the  wife  from 
being  misled.  A  private  examination  was  required  by  the  court, 
apart  from  the  husband,  to  ascertain  whether  she  acted  of  her 
own  free  will.  This  rule  was  in  time  relaxed,  so  that  the  wife 
could  appear  before  commissioners  out  of  court  instead  of  in 
court,  and  her  statement  could  be  certified  by  them  to  the 
court. 

The  method  of  conveying  the  estates  of  married  women  by 
"  fine  "  did  not  exist  in  practice  in  the  colony  of  New  York 
before  the  Revolution.  This  fact  led  to  much  doubt  and  con- 
troversy as  to  the  validity  of  conveyances  made  by  married 
women.     A  statute  was  passed  by  the  colonial  legislature,  in 

1  Ballin  v.  Dillaye,  37  IT.  Y.  35.  *  This  was  by  no  means  the  only  effect 

2  Laws  of  1884,  ch.  381.  There  was  no  of  a  fine.  The  subject  is  well  and  tersely 
general  capacity  to  contract  until  that  act.  explained  in  note  171,  Butler's  Ed.  to 
Linderman  v.  Farquharson,  101  N.  Y.  434.  Coke  upon  Littleton.     See  also  5  Cruise's 

3  Hearle  v.  Greenbank,  1  Ves.  Sr.  298,  Digest,  tit.  35,  ch.  5. 
305. 


(a)  See  also  Laws  of  1887,  ch,  537  ;   Laws  1892,  ch.  594. 


203  THE    LAW    OF   PEESONS. 

1771,  confirming  in  favor  of  purchasers  in  good  faith  titles  pre- 
viously made  without  the  wife's  acknowledgment  before  a  com- 
missioner such  as  that  required  in  England  by  the  law  of  fines.  ^ 
The  act  of  1771  was  affirmed  in  the  State  Constitution  of  1777. 

The  act  of  1771,  above  referred  to,  not  only  cured  defects, 
if  any,  in  prior  conveyances,  but  established  a  rule  for  the  future. 
It  then  became  necessary  that  a  married  woman,  in  executing  a 
conveyance,  should  comply  with  that  rule  in  the  English  law  of 
fines,  which  required  a  private  examination  apart  from  her  hus- 
band. It  was  required,  if  she  were  a  resident  of  the  State,  that 
she  should  appear  before  designated  officers,  or  magistrates 
authorized  to  take  her  acknowledgment,  and  to  acknowledge 
privately,  and  separate  and  apart  from  her  husband,  that  she 
executed  the  conveyance  freely  and  without  fear  of  or  compul- 
sion by  her  husband.  This  acknowledgment  was  not  required  if 
she  were  a  non-resident  of  the  State.  In  that  case  she  could 
convey  as  if  she  were  a  single  woman.  The  same  rule  was 
applied  where  she  did  not  act  in  her  own  right,  but  under  a 
power  conferred  upon  her  by  another,  except  that  if  the  instru- 
ment granting  her  the  power  required  her  to  execute  it  by  deed, 
it  must  be  acknowledged ;  for  it  is  only  by  the  prescribed  form 
of  acknowledgment  that  a  married  woman  can  execute  a  "  deed. "  ^ 
When  the  acknowledgment  already  referred  to  is  required  by 
law,  a  deed  executed  without  it  is  void  as  to  the  wife.^  This 
defect  could  not  be  healed  by  a  subsequent  acknowledgment, 
for  this  would  only  cause  the  instrument  to  take  effect  from  the 
time  of  the  acknowledgment.  If  in  the  mean  time  a  regular 
conveyance  had  been  made  to  another,  the  title  of  the  latter 
would  prevail.  The  rule  cannot  be  evaded  by  antedating  the 
deed  as  though  it  were  executed  before  marriage,  and  by  execut- 
ing it  in  the  wife's  maiden  name.^  If  a  married  woman  be  a 
minor,  a  compliance  with  the  statute  of  acknowledgments  will  not 
make  her  conveyance  valid.  Her  infancy  is  a  separate  and 
independent  ground  of  invalidity.^ 

The  fact  of  private  acknowledgment  can  only  be  proved  by  an 
official  certificate.     A  material  defect  in  the  certificate  cannot 

1  Ch.  1484,  Feb.  16,  1771  ;   amended,  -  Jackson  v.  Edwards,   7  Paige,   386, 
ch.  1609,  March  8,  1773.     Constantine  v.  402  ;  on  appeal,  22  Wend.  498. 
Van   Winkle,    6    Hill,    177    (reversing   2          3  Jackson  v.  Stevens,  16  Johns.    110  ; 
Hill,  240)  ;  Van  Winkle  v.  Constantine,  Jackson  v.  Cairns,  20  Johns.  301  ;  Gillet 
10  N.  Y.  422.     In  these  cases  the  Colonial  v.  Stanle}',  1  Hill,  121. 
history  of  this  subject  is  thoronghly  sifted,          *  Galliano  v.  Lane,  2  Sandf.  Ch.  147. 
and  satisfactory  results  are  reached.     See  &  Bool  v.  Mix,  17  Wend.  119  ;  Sand- 
also     Meriam    v.    Harsen,    2    Barb.    Ch.  ford  v.  McLean,  3  Paige,  117;  Sherman  v. 
232.  Gnrfield,  1  Den.   329. 


HUSBAND  AND   WIFE.  209 

be  supplied  by  external  evidence. ^  The  rule  required  an  agree- 
ment to  convey  to  be  acknowledged  as  well  as  the  conveyance 
itself.  2 

The  law  of  New  York  did  not  require  the  husband  to  unite 
with  his  wife  in  a  conveyance,  so  as  to  make  it  valid  as  to  her.^ 
So  stood  the  law  in  New  York  until  the  year  1848.  In  that 
year  the  rule  underwent  a  radical  change,  applicable  to  future 
conveyances.  It  was  provided  in  substance  that  a  married 
woman  might  acquire  and  convey  real  estate  as  if  she  were  a 
single  woman,  and  it  was  further  provided  that  it  should  not  in 
any  way  be  subject  to  the  disposal  of  her  husband.  The  effect 
of  this  legislation  was  deemed  to  be  that  a  private  acknowledg- 
ment was  no  longer  necessary  to  the  conveyance  of  a  wife's 
estate.*  The  act,  however,  did  not  extend  to  a  release  of  a 
married  woman's  inchoate  right  of  dower,  and  as  to  that  a 
private  acknowledgment  remained  necessary. 

The  whole  subject  of  private  acknowledgments  is  swept  away 
in  New  York  by  more  recent  legislation,  all  statutes  requiring  it 
being  repealed ;  ^  in  fact,  it  has  practically  disappeared  from 
American  law.  It  has  also  been  abrogated  in  England  by  the 
"  Married  Women's  Property  Act  of  1882  "  (45  &  46  Vict.  c.  75). ^ 

It  is  a  settled  rule  that  one  of  the  parties  to  a  marriage  can- 
not, by  common  law,  convey  to  the  other.  This  is  a  technical 
rule  growing  out  of  the  legal  unity  of  husband  and  wife.  It 
is  modified  in  a  court  of  equity  where  the  conveyance  is  made 
for  a  valuable  consideration.  The  consideration  converts  the 
grantor  into  a  trustee  for  the  grantee. 

The  practical  result  in  such  a  case  is  that  though  there  is  no 
true  transfer  of  title,  a  trust  is  fastened  upon  the  property  which 
a  court  of  equity  will  protect  and  enforce.  Leaving  this  special 
case  out  of  view,  and  supposing  the  transaction  to  be  in  sub- 
stance a  voluntary  conveyance  or  a  mere  gift,  it  will  be  void  both 
in  law  and  in  equity,  since  no  trust  can  be  raised  for  want  of  a 

1  Elwood  V.  Klock,  13  Barb.  .50.  In  ^  Laws  of  1879,  ch.  2-19,  as  amended 
England  a  certificate  of  acknowledgment,     by  Laws  of  1880,  ch.  300. 

made  twenty  years  after  the  wife  made  the  ^  This  statute  was  applied  by  the  court 

acknowledgment,  has  been  upheld.    In  re  to    a    settlement    made   under   the  prior 

Chalker,  47  L.  J.  C.  P.  Div.  378.  statute  of  40  &  41  AMct.  c.  18,  §  50  (1877), 

2  Knowles  v.  McCamby,  10  Paige,  342.  though  in  that  act  a  private  examination 
8  Firemen's  Ins.    Co.   v.   Bay,  4  Barb,  was  required.     Riddell  v.  Errington,  L.  R. 

407  ;    on   appeal,  suh.  nam..   Albany  Fire  26  Ch.  D.   220  ;  but  in  the  later  case  of 

Ins.  Co.  V.  Bay,  4  N.  Y.  9.  Harris'  Settled  Estates,  it  was  determined 

*  Blood  V.  Humphrey,  17  Barb.   660  ;  that  the  new  rule  was  only  applicable  to 

Andrews  v.  Shaffer,  12  How.  Pr.  441 ;  Yale  property   acquired   after   the  act  of  1882 

V.  Dederer,  18  N.  Y.  265,  271  ;  Wiles  v.  went  into  effect.     L.  R.   28  Ch.  D.  171, 

Peck,  26  X.  Y.  42,  46,  47.  174. 

14 


210  THE   LAW   OF   PEKSONS. 

pecuniary  consideration. ^  A  valid  transfer  may  be  made  by  a 
conveyance  by  one  of  the  parties  to  a  third  person,  who  may,  in 
turn,  convey  to  the  other  party  to  the  marriage. ^  In  conveying 
to  the  third  person,  the  object  of  the  conveyance  may  be  stated 
in  the  instrument.  ^  In  New  York,  since  June  6,  1887,  a  con- 
veyance may  be  made  directly  to  the  husband  or  wife  by  the 
other  party,  without  the  intervention  of  a  third  person.*  This 
act  is  in  express  terms  made  prospective. 

A  word  may  be  added  as  to  the  effect  of  a  married  woman's 
conveyance,  in  case  she  has  no  interest  in  the  land  at  the  time 
of  the  conveyance,  but  subsequently  becomes  owner.  There 
is  a  marked  contrast  in  this  respect  between  a  conveyance  by  a 
woman  when  single  and  when  married.  If  she  were  single,  and 
had  made  a  covenant  of  warranty,  the  subsequently  acquired 
land  would  have  passed  to  the  grantee  by  force  of  the  covenant. 
Being  married,  her  deed  will  operate,  notwithstanding  the 
covenant,  only  as  a  transfer  of  what  she  owned  at  the  time.^ 
The  reason  of  this  is,  that  the  covenant  operates  as  a  contract; 
but  a  married  woman  cannot  make  a  contract.  It  would  seem, 
accordingly,  that  wherever  the  law  gives  a  married  woman 
capacity  to  contract,  she  may,  by  means  of  a  covenant  of  warranty, 
transfer  her  subsequently  acquired  possessions;  in  other  words, 
she  may  covenant  with  the  same  effect,  as  if  she  were  a  single 
woman. 

Exception  III.  Another  exception  to  the  incapacity  of  the  wife 
to  contract  exists,  according  to  some  authorities,  where  she  is  a 
resident  in  a  particular  country,  and  her  husband  is  a  non- 
resident alien,  in  the  sense  of  having  never  resided  there. ^ 
Later  cases  in  England  have  thrown  doubt  upon  this  doctrine. 
It  now  appears  to  be  decided  there  that  it  is  not  enough  that  the 
husband  is  a  non-resident  alien.     He  must  also  be  civilly  dead." 

The  American  cases  are  more  liberal.  Some  maintain  that  if 
a  husband  abandons  his  wife,  and  she  supports  herself  by  her 
labor,   she  has  a  common-law  capacity  to  contract.^     But  the 

1  White  V.  Wager,  25  N.  Y.  328  ;  Wi-  5  Jackson  v.  Vanderheyden,  17  Johns, 
nansv.  Peebles,  32  N.Y.  423.  It  was  held,  167;  Teal  v.  Woodworth,  3  Paige,  470; 
however,  in  Hunt  v.  Johnson,  44  N.  Y.  Carpenter  v.  Schermerhorn,  2  Barb.  Ch. 
27,  that  a  deed  of  gift  from  a  husband  to  314. 

a  wife  would  be  sustained  in  equity  on  ^  M' Arthur  v.    Bloom,    2  Duer,    151  ; 

account  of  his  duty  to  support  her,  which  Kay  v.  de  Pienne,  3  Camp.  123  ;  Walford 

would  be  a  consideration.  v.  de  Pienue,  2  Esp.  554. 

2  Jackson  v.  Steven,?,  16  Johns.  110;  ''  Harden  Keverberg,  2  M.  &  W.  61; 
Dernpsey  v.  Tylee,  3  Duer,  73  ;  Meriam  v.  Boggetl  v.  Frier,  11  East,  301  ;  De  Wahl 
Harsen,  2  Barb.  Oh.  232.  v.  Braune,  1  H.  &  N.  178. 

*  Lynch  v.  Livingston,  6  N.  Y.  422.  »  Abbot  v.  Bayley,  6  Pick.  89  ;  Gregory 

*  Laws  of  1887,  ch.  537.  v.  Pierce,  4  Met.  478. 


HUSBAND   AND   WIFE.  211 

elopement  of  the  wife  gives  her  no  right  to  make  contracts. 
Nor  does  the  fact  that  they  live  apart  under  articles  of  separa- 
tion. They  still  remain  husband  and  wife.  Lord  Mansfield 
attempted  to  introduce  into  the  law  a  more  lax  doctrine  in  the 
case  of  separation,  1  but  his  views  have  not  been  followed. ^  So 
the  judicial  separation  of  the  parties  does  not  restore  to  the  wife 
her  capacity  to  contract. 

Subsection  II.  Special  statutory  rules.  —  There  have  grown  up 
from  time  to  time  in  New  York  special  statutory  exceptions 
since  1849,  which  may  be  enumerated  as  showing  the  steady 
progress  of  legislation  in  removing  the  incapacity  of  married 
women  to  perform  valid  legal  acts. 

(1)  By  the  Laws  of  1850,  ch.  91,  she  may  deposit  money  in  a 
savings  bank,  and  may  receive  payments  upon  the  deposits,  ((y) 

(2)  She  may  take  and  hold  a  life  insurance  policy  upon  her 
husband's  life.  The  amount  of  the  insurance  money  may  be 
made  payable  to  her  in  case  she  survives,  and  if  she  does  not 
survive  her  husband,  to  her  children.  The  premium  may  be 
paid  by  the  husband,  but  should  not  exceed  five  hundred  dollars 
per  annum,  since  all  in  excess  of  that  sum  will  create  a  trust  for 
the  husband's  creditors.^ (5)  If  the  statutes  be  followed,  such  a 
policy  cannot  be  reached  by  the  husband's  creditors.* 

The  husband,  in  taking  out  such  a  policy,  acts  as  the  agent  of 
those  for  whom  it  is  taken,  and  they  acquire  a  vested  interest  in 
it  as  soon  as  it  is  delivered  to  him,  even  though  they  have  no 
knowledge  that  the  insurance  has  been  taken  out.^     He  would 


1  Covbett  V.  Poelnitz,  1  Durn.  &  East,  *  Bloomingdale  v.   Lisberger,  24  Hun, 
(Term  R.)  5.                                                         355. 

2  Beach  v.  Beach,  2  Hill,  260.  ^  Whitehead  v.  N.  Y.  Life  Ins.  Co.,  102 

3  The  laws  upon  this  subject  are  :  Laws     N".    Y.   143  ;    Raker  v.   Union  Mut.   Life 
of  1840,  ch.  80  ;  1858,  ch.  187  ;  1862,  ch.     Ins.  Co.,  43  N.  Y.  283. 

70  ;  1866,  ch.  656  ;  1870,  ch.  277  ;  1873, 
ch.  821;  1879,  ch.  248. 


(«)  This  statute  was  re-enacted  in  sub-  is  in  excess  of  .$500  per  annum.     In  such 

stance  by  the  same  act  that  repealed  it.  an  action  the  husband  and  wife  may  be 

See  Laws  of  1875,  ch.  371.     This  act  was  in  restrained   from  transferring    the    policy, 

turn  repealed  by  ch.  402,  §  1,  par.  33,  of  except  in  subordination  to  the  lien  of  the 

the  Laws  of  1882,  and  re-enacted  by  ch.  creditor.     A  like  judgment   may  be  ren- 

409,  Laws  of  1882.     The  pi'ovision  seems  dered  as  to  the  future  contingent  interests 

to  have  been  omitted  from  the  Banking  of  children.    Stokes  v.  Amerman,  121  N.Y. 

f^TW  of  1892,  ch.  689,  Laws  of  1892.    (See  337.     See  also    Masten   v.    Amerman,  20 

Art.  III.  §  114.)  Abb.  N.  C.  443.     As   to   following   part- 

(b)  An  action  is  maintainable  in  equity  nership  funds    fraudulently  used  by  one 

Iiy  a  judgment  creditor,  during  the  life  of  partner  for  the  payment  of  premiums  on 

Uie  policy,  to  adjudge  and  declare  a  lien  policies  for  his  wife's  benefit,  see  Holmes 

upon  the  policy  in  his  favor,  where  the  v.  Oilman,  138  N.  Y.  369;  Shalery.  Trow- 

araount  of  premiums  paid  by  the  husband  bridge,  28  N.  J.  Eq.  595. 


212  THE   LAW   OF   PEKSONS. 

have  no  power  to  surrender  the  policy,  since  his  agency  would 
not  extend  so  far.  (a)  Before  the  statute,  it  was  quite  doubtful 
whether  the  wife  and  children  had  an  insurable  interest  in  the 
life  of  the  husband  and  father.  ^ 

A  policy  would,  in  its  nature,  be  assignable  by  those  having 
an  interest  in  it.  The  early  acts  by  implication  took  away  the 
power  of  assignment.  The  policy  was  deemed  inalienable  on 
grounds  of  public  policy.  ^(5)  A  policy,  in  its  terms  made  pay- 
able to  a  wife  without  naming  the  children,  would,  if  the  hus- 
band survived,  belong  to  him  as  survivor.  ^  This  would  be 
true  on  the  common-law  ground  of  the  husband's  title  to  a  wife's 
chattels  in  case  of  his  survivorship.  The  later  statutes  provide 
for  an  assignment  with  the  husband's  written  consent,  and  also 
for  a  surrender.* 

Assuming  that  the  policy  is  inalienable,  and  that  an  attempt 
of  the  wife  to  transfer  it  will  have  no  legal  effect  upon  her 
right,  still  her  creditors  could  not  claim  that  the  assignment 
made  in  the  lifetime  of  her  husband  was  fraudulent  as  to  them.° 
The  rule  of  inalienability  has  been  held  to  apply,  whether  the 
premiums  were  paid  by  the  husband,  wife,  or  third  person.^ 
Since  the  statute  of  1879,  the  policy  may  be  assigned  with  the 
husband's  written  consent  as  above  stated.  The  act  of  joining 
in  the  assignment  is  a  sufficient  consent.'''  Such  an  assignment 
would  be  valid  to  the  extent  of  the  wife's  interest,  even  though 
there  were  a  clause  in  the  policy  making  the  insurance  money 
payable  to  the  children  in  case  the  wife  did  not  survive  the 
husband.^  But  if  the  prescribed  event  happened,  the  children's 
interest  would  not  be  affected,  since  their  contingent  right 
would  have  become  vested.^ 

There  are  similar  provisions  in  Massachusetts  and  in  other 
States.  Under  the  law  of  England,  policies  of  life  insurance  may 
be  issued  in  the  name  of  a  wife.     The  statute  is  more  compre- 

1  Ruse  V.  Mut.  Benefit  Life  Ins.  Co.,  23  5  Smillie  u.  Quinn,  90  N.  Y.  492. 

N.  Y.  516 ;  but  see  remarks  of  Andrews,  ^  Frank  v.  Mutual  Life  Ins.  Co.,  102 

J.,  in  Brummer  v.  Cohn,  86  N.  Y.  11.  N.  Y.  266. 

2  Wilson  V.  Lawrence,  76  N".  Y.  585  ;  "^  Anderson  v.  Goldsmith,  103  N.  Y. 
Eadie  v.  Slimmon,  26  N.  Y.  9  ;  Barry  v.  617. 

Eiiuitable  Life  Assurance  Soc,  59  N.  Y.  8  id, 

587  ;  Brummer  v.  Cohn,  86  N.  Y.  11.  9  Dictum   in  Fowler   v.   Butterby,    78 

3  Olmsted  v.  Keyes,  85  N.  Y.  593.  N.  Y.  68. 
*  Laws  of  1873,  ch.  821;  Laws  of  1879, 

eh.  248. 

(a)  But  such  a  surrender  will  prevent  a  conditions.     Schneider  v.  TJ.  S.  Life  Ins. 

recoveiy  by  the  wife  in  an  action  on  the  Co.,  123  N.  Y.  109. 
policy,  if  she,  or  her  husband  as  her  agent,  (b)  Brick  v.  Campbell,  122  N,  Y.  337. 

has  failed  to  perform  one  of  its  essential 


HUSBAND    AND    WIFE.  213 

hensive  than  those  in  New  York,  and  permits  a  wife  to  take  out 
a  policy  for  the  benefit  of  her  husband  and  children,  or  any  of 
them.  There  are  provisions  to  prevent  fraud  upon  creditors, 
and  also  for  allowing  the  insured  to  appoint  from  time  to  time 
a  trustee  of  the  moneys  payable  under  the  policy,  and  when 
none  is  appointed,  constituting  the  insured  a  trustee  for  the 
beneficiaries.  ^ 

(3)  The  right  of  a  married  woman  to  a  patent  for  her  own 
invention  is  conceded  to  her  by  statute,  and  she  may  perform 
all  acts  in  relation  to  it  as  if  she  were  sole  and  unmarried. ^ 

(4)  She  has  rights  as  a  stockholder  in  a  corporation  and  the 
capacity  of  voting  as  a  stockholder  upon  all  shares  of  stock 
belonging  to  her.^ 

(5)  She  has  also  a  right  to  her  earnings,  including  the  profits 
of  a  business  carried  on  on  her  separate  account.  The  statutes 
give  her  a  right  to  collect  her  earnings  by  action.*  This  rule 
does  not  allow  her  to  claim  compensation  from  her  husband  for 
services  rendered  in  his  family,  (a)  She  cannot  validly  contract 
with  her  husband,  as  against  his  creditors,  — e.  g.,  for  services  in 
attending  upon  and  nursing  his  mother  in  sickness.  ° 

(6)  She  has  the  general  control  of  her  separate  estate,  may 
bring  actions  or  be  sued  concerning  it,  and  become  responsible 
for  costs. 

(7)  She  may  carry  on  a  trade  or  business,  and  make  contracts 
respecting  it  as  a  single  woman  may  do.^  (6). 

1  45  &  46  Vict.  c.  75,  §  11  (1882).  *  Laws  of  1860,  ch.  90  ;  Laws  of  1362, 

2  New  York,  Laws  of  1845,  ch.  11.  cli.  172. 

3  Laws  of  1851,  ch.  321.  ^  Coleman  v.  Bnrr,  93  N.  Y.  17. 

6  Laws  of  1860,  ch.  90;  1862,  ch.  172. 


(a)  Blaechinska  v.  Howard  Mission,  married  woman  should  appear,  prosecute, 
130  N.  Y.  497.  The  legislation  in  New  or  defend  alone  or  joined  with  others  as  if 
York  upon  the  subject  of  the  rights  of  single.  It  was  decided  under  this  section 
married  women  has  not  deprived  the  hus-  that  a  wife  might  maintain  an  action  in 
band  of  the  common-law  right  to  avail  her  own  name  against  one  who  had  enticed 
himself  of  a  profit  or  benefit  from  the  ser-  away  her  husband,  and  deprived  her  of  his 
vices  of  the  wife.  Porter  ■;;.  Dunn,  131  society.  Bennett  v.  Bennett,  116  N.  Y. 
N.  Y.  314.  584.     See,  however,   as  to  actions  to  re- 

(b)  By  ch.  90,  Laws  of  1860,  and  ch.  cover  for  personal  injuries,  Ball  v.  Burle- 
172,  Lawsof  1862,  a  married  woman  could  son,  23  Abb.  N.  C.  332. 

maintain  an  action  in  her  own  name  for  By  ch.  248,  Laws  of  1890,  amending 

damages  to  her  person  or  character,  the  §  450  of  the  Code,  and  ch.  51,  Lawsof  1890, 

same   as  if  she   were    sole.      These    pro-  the  husband  is  no  longer  a  necessary  or 

visions  were,  however,  repealed  by  ch.  245,  proper  party  to  an  action  or  special  pro- 

§§  36,  38  of  the  Laws  of  1880.  ceeding  to  recover  damages  for  an  injury 

By  §  450  of  the  Code  of  Civil  Prnce-  to  the  person,  estate,  or  character  of  the 

dure,  as  amended  in  1879,  it  was  provided  wife, 
that,  in  an  action  or  special  proceeding,  a 


214  THE   LAW   OF   PERSONS. 

A  survey  of  these  specified  instances  shows  that  they  carry 
with  them  no  general  power  to  make  contracts.  That  power 
was  only  allowed  in  special  instances,  and  for  well-defined 
purposes.  The  effect  of  them  was  summed  up  by  the  Court  of 
Appeals,  in  1882,  as  follows:  A  married  woman  cannot  bind  her- 
self by  contract,  unless,  first,  the  obligation  was  created  by  her  in 
or  about  carrying  on  her  trade  or  business ;  second,  the  contract 
relates  to,  or  is  made  for,  the  benefit  of  her  separate  estate ;  or, 
third,  the  intention  to  charge  her  separate  estate  is  expressed  in 
the  instrument  or  contract  by  which  the  liability  is  created;  or, 
fourth,  the  debt  was  created  for  property  purchased  by  her.^ 

A  much  more  radical  change  in  the  law  was  produced  in  1884.2 
This  statute  provides  that  a  married  woman  may  contract  to  the 
same  extent,  with  like  effect,  and  in  the  same  form  as  if  unmar- 
ried, and  that  she  and  her  separate  estate  shall  be  liable 
whether  the  contract  relates  to  her  separate  business  or  not. 
The  act,  however,  has  no  application  to  any  contract  between 
husband  and  wife.  (a). 

Important  questions  have  been  presented  as  to  the  capacity  of 
the  wife  to  enter  into  certain  contracts  with  her  husband,  not- 
withstanding the  exception  found  in  the  act  of  1884,  just 
referred  to.  Prominent  among  these  is  the  inquiry,  whether 
the  husband  and  wife  can  become  partners  as  hetiveen  themselves. 
It  will  scarcely  be  denied  that  they  might  by  their  acts  make 
themselves  liable  to  third  persons,  as  if  they  were  partners.^ 
As  to  this  point,  the  authorities  are  irreconcilable.  They  are 
referred  to  in  the  note.*  {h) 

It  would  seem,  however,  that  a  married  woman  can  be  an 
agent  for  her  husband,  and  that,  reciprocally,  her  husband  can 
be  an  agent  for  her,  and  that  each  may  be  a  general  as  well  as 

1  Saratoga  County  Bank  v.  Pruyn,  90  *  Bitter  v.  Rathman,  61  N.  Y.  512  ; 
N.  Y.  250.                                                          Koel  v.  Kinney,  106  N.  Y.  74  ;  s.  c.  19 

2  Laws  of  1884,  ch.  381.  Abb.   N.  C.  239  ;    Kaufman  v.  Schceffel, 

3  See  the   reasoning  of   the   court  in    37  Hun,  140  ;  GraflF  ij.  Kinney,  Id.  405. 
Noel  V.  Kinney,  106  N.  Y.  74,  80,  81. 


(a)  This  act  was  amended  by  Laws  of  cided  that  under  ch.  90,  Laws  of  1860,  a 

1892,  ch.  594,  and  §  2  of   the  statute   of  wife  cannot  escape  liability  on  the  ground 

1884   exempting   contracts  between   hus-  of  coverture,    where    husband    and    wife 

band  and  wife   from  the  operation  of  tlie  assume  to  carry  on  business  as  partners, 

act,  was  expressly  repealed.     The  statute  and  contract  debts  in  the  course  of  such 

of  1892  practically  provides  that  the  wife  business. 

may  contract  with    her   husband   or  any  See,  however,  Lowenstein  v.  Salinger, 

other  person  to  the  same  extent,  with  like  42  N.  Y.  St.  Rep.   414.     All  doubt  upon 

effect,  and  in  the  same  form  as  if  unmar-  the  subject  would  seem  to  be  removed  by 

ried.     See  ante,  p.  198,  note  (a).  the  amendment  to  Laws  of  1884,  ch.  381. 

(h)  A  later  case  in   the  Court  of  Ap-  See  ch.  594,  Laws  of  1892. 
peals,  Suau  v.  Caffe,  122  N.  Y.  308,  de- 


HUSBAND   AND   WIFE.  215 

a  special  agent  for  the  other.  The  wife  can  dispose  of  her  own 
interest  in  property  owned  by  them  jointly,  and  her  husband's 
interest  on  the  theory  of  agency;  and  the  same  line  of  remarlc 
applies  to  the  husband.  This  would  practically  result  in  a 
partnership  if  they  bought  and  sold  merchandise  with  a  view  to 
sharing  the  prolits.  The  doubt  accordingly  seems  to  be 
unfounded,  and  the  husband  and  wife  may  be  partners  both 
between  themselves  and  as  to  third  persons. 

A  statute  quite  as  sweeping  and  comprehensive  was  passed  in 
England  in  1882  ;  45  &  46  Vict.  c.  75.  This  is  a  clearly  drawn 
and  well  guarded  act.  It  declares  her  contract  to  be  binding  on 
her  "  separate  property,"  and  includes  in  that  expression  all  that 
she  owns  at  the  time  or  may  subsequently  acquire. 

Section  TV.  The  view  taken  by  courts  of  equity  of  the  wife's 
"  separate  estate"  and  the  relation  to  this  of  recent  legislation. 

Courts  of  equity  at  an  early  day  established  two  trusts  in  favor 
of  married  women  which  gave  her  a  power  of  control  over  prop- 
erty which  she  did  not  possess  without  them.  One  was  called 
the  "  trust  for  separate  use,"  and  the  other,  the  "  pin  money  " 
trust.  By  means  of  these  she  could  hold  property  independently 
of  her  husband  or  dispose  of  it  and  manage  it  in  direct  con- 
travention to  the  rules  of  the  common  law.  It  has  been  said 
that  the  court  by  this  means  clearly  violated  the  rules  of  prop- 
erty as  between  husband  and  wife,  but  that  the  jurisdiction  thus 
exercised  accorded  with  popular  feeling,  and  prevailed.^  This 
doctrine  was  first  established  in  favor  of  a  wife  who  was  living 
apart  from  her  husband  by  a  deed  of  separation,  or  in  a  case 
where  he  was  a  spendthrift.^  At  a  later  period  the  principle  was 
extended  to  other  cases. 

A  Separate  Use  Trust  may  be  attached  in  equity  to  both  real 
and  personal  property.  It  is  of  more  importance  to  the  wife  in 
personal  than  in  real  estate,  since  in  the  former  the  title  would 
vest  absolutely  in  the  husband  if  there  were  no  trust,  while  in  the 
latter  he  would  have  at  most  but  a  life  estate. 

The  trust  for  "  separate  use  "  is  not  to  be  confounded  with  tlie 
wife's  separate  property,  which  is  not  placed  under  such  a  trust. 

1  Speuce's  Equity  Jur.,  596  ;  Adams  sliouM  be  at  her  disposing."  21  Jac.  I. 
on  Equity,  43.  Another  case  in  the  same  volume  is  Georges 

2  Sanky  y.  Golding,  Cary's  R.  124,  ij.  Chancie,  Id.  p.  97.  "  A  feme  covert  be- 
21st  year  of  Queen  Elizabeth  ;  Fleshward  ing  separated,  having  an  allowance  of  two 
V.  Jackson,  Tothill's  Rep.  94.  The  case  is  hundred  pounds,  she  improved  it  and 
short,  and  is  here  transcribed:  "Money  disposed  of  it  by  her  will."  15  Car.  I. 
given  to  a /erne  covert  for  her  maintenance.  There  is  a  number  of  cases  in  this  volume, 
Because  her  husband  is  an  unthrift,  the  pp.  93-96,  in  which  the  wife  sues  without 
husband  pretends  the  money  to  be  his  ;  her  hu.sband,  and  in  the  name  of  a  next 
but  the   court   ordered    that   the   money  friend,  and  sues  the  husband  himself. 


216  THE   LAW   OF   PEKSONS. 

Thus  if  a  wife  should  acquire  land  by  descent,  she  would  own  it 
(subject  to  her  husband's  life  estate),  but  there  would  be  no  trust. 
More  than  this,  there  might  even  be  a  trust  estate  vested  in  the 
wife,  without  being  a  trust  for  her  "  separate  use."  This  latter 
trust  is  created  by  an  agreement,  or  perhaps  by  a  will,  in  which 
the  intention  is  sufficiently  disclosed.  This  leads  to  the  inquiry,  — 
how  the  "  separate  use  "  trust  may  be  created.  Some  usual  forms 
will  now  be  stated. 

(1)  By  antenuptial  settlement.  Such  an  agreement  made  before 
marriage  and  founded  upon  it,  whether  made  by  the  proposed  hus- 
band or  some  third  person,  is  based  upon  a  valuable  consideration. 
The  wife,  acting  in  good  faith,  may  hold  the  property  as  against 
the  claims  of  the  settlor's  creditors,  unless  they  have  interests  or 
liens  in  and  upon  the  property  itself.^ 

(2)  Postnwptial  settlement.  Property  may  in  like  manner  be 
settled  upon  the  wife  by  the  husband  or  others  after  marriage. 
The  marriage  in  this  case  is  not  a  valuable  consideration,  since 
it  has  already  taken  place.  Some  new  and  independent  consider- 
ation is  necessary  to  make  it  valid  as  to  the  creditors  of  the  set- 
tlor. She  might,  for  example,  part  with  her  own  property  on  the 
faith  of  the  settlement.^ 

An  agreement  to  settle  property,  made  in  legal  form,  will  in  the 
view  of  the  court  be  equivalent  to  an  actual  settlement.  Such  a 
transaction  is  a  trust.  If  a  conveyance  be  made  in  this  way 
directly  between  the  parties,  though  void  in  law,  it  will  be  upheld 
in  equity.^  (a) 

A  settlement  made  after  marriage  without  pecuniary  considera- 
tion is  a  mere  gift.  It  is  not  binding  upon  existing  creditors  of 
the  settlor,^  but  this  rule  has  been  in  later  years  relaxed  so  far  as 
to  uphold  it,  in  case  the  settlor  retains  sufficient  property  of  in- 
trinsic value  to  pay  his  creditors.  It  is,  however,  binding  on  the 
settlor  himself,  including  the  husband.^  (5)     It  will  be  exempted 

1  Bradisli  v.  Gibbs,  3  Johns.  Ch.  523;  ^  Livingston  v.   Livingston,  2   Johns. 

Magniac  v.  Thompson,  7  Pet.  348.     The  Ch.  537. 

principles  on  which  an  antenuptial  settle-  ^  Simmons  v.  McElvrain,  26  Barb.  419; 

ment    between    persons    of    large   means  Garlick  v.  Strong,  3  Paige,  440. 
should  be  construed,  were  stated  in  Gorham  *  Reade  v.   Livingston,    3  Johns.    Ch. 

V.  Fillmore,  111  N.  Y.  251.  481. 

5  Martin  v.  Martin,  1  N.  Y.  473. 


[a)  But  see  Shaffer  v.  Kugler,  107  Mo.  husband   to   his   wife   is  valid  as  against 

58.     A  husband  maj'  make  a  valid  gift  to  subsequent  creditors,  unless  made  with  in- 

his  wife  of  his  interest  in  a  contract  for  tent  to  defraud  them,  or  secretl}',  or  with 

the  purchase  of  land.     Fruhauf  y.  Bend-  a  view  of  embarking  in  some  new  or  hazard- 

heim,  127  N.  Y.  587.  ous  business.      Keuberger   v.   Keim,    134 

(6)  A   voluntary    conveyance   from  a  N.  Y.  35. 


HUSBAND   AND   WIFE.  217 

from  the  claims  of  subsequent  creditors,  if  made  in  good  faith 
and  with  sufficient  notoriety. 

(3)  Settlement  inade  ivlth  a  view  to  separation.  Such  a  tran- 
saction will  be  upheld  if  made  with  a  view  to  immediate  separa- 
tion. There  has  been  much  diversity  of  opinion  upon  this  point, 
though  the  rule  now  seems  to  be  fully  settled.^  {a)  Courts  of 
equity  will  grant  the  usual  remedies  resorted  to  for  the  enforce- 
ment of  contracts  in  this  class  of  cases,  —  e.  i/.,  specific  perform- 
ance, injunction,  etc.  It  is,  however,  essential  that  a  separation 
should  in  fact  take  place,  and  be  intended  to  take  place,  otherwise 
the  instrument  will  be  void.^  The  effect  of  the  instrument  is  next 
to  be  noticed. 

A  wife  living  apart  from  a  husband  under  a  deed  of  separation 
is  no  longer  subject  to  his  authority.^  The  deed  will  not  be 
invalidated  by  the  subsequent  adultery  of  the  wife,  unless  she 
had  induced  her  husband  to  execute  it  in  contemplation  of  illicit 
intercourse,  which  would  be  a  species  of  fraud.*  It  is,  however, 
avoided  by  the  parties  coming  together  again.^  (5)  But  a  clause 
in  the  deed  that  the  parties  may  visit  each  other  in  case  of  sick- 
ness will  not  vitiate  it,  though  an  actual  visit  might  have  that 
effect.^  The  court  does  not  authorize  or  sanction  these  agree- 
ments ;  at  most  it  only  tolerates  them.' 

Stipulations  depriving  the  husband  of  the  custody  of  the  cliil- 
dren  will  in  general  be  void  as  opposed  to  public  policy  and  the 
welfare  of  the  children.^  If,  however,  it  appears  in  the  particular 
case  that  the  conduct  of  the  father  is  injurious  to  the  child,  this 
view  will  not  be  taken.^  (c) 

An  agreement  contemplating  a  voluntary  future  separation  is 
void  as  opposed  to  public  policy.  It  is  immaterial  whether  such 
an  agreement  is  made  before  or  after  marriage,^"^ 


1  Hunt  V.  Hunt,  4  De  G.  F.  &  J.  221 
Wilson  V.  Wilson,  1  H.  L.  Cases,  538 
Pollock  on  Contracts,  4th  ed.  265,  266 


6  Carson  v.  IVrnrray,  3  Paige,  483. 
^  Roger's  v.  Rogers,  4  Paige,  51 6. 
^  Vansittart   v.  Vansittart,  4  K.  &  J. 


Sanders  v.  Eodway,   16  Beav.  207  ;  Gibbs  62  ;  on  appeal,  2  De  G.  &  J.  249. 

V.  Harding,  L.  R.  5  Ch.  App.  Cas.  336.  9  Swift  v.   Swift,  4  De  G.  J.  &  S.  710; 

2  Hindley  u.Westmeath,  6  B.  &C.  200.  on  appeal,  11  Jur.  N.  s.  458. 

3  Rex  i\  Mead,  2  Ld.  Kenyon,  279.  i'^  H.  v.  W,,  3  K.  &  J.  382  ;  Cartwriglit 

4  Evans  v.  Carringtou,  2  De  G.  F.  &  J.  v.   Cartwright,    3    De  G.    M.    &  G.    982  ; 
481.  Bindley  v.  MuUoney,  L.  R.  7  Eq.  343. 

6  Shelthar  v.  Gregory,  2  Wend.  422. 


{a)  See,  on  the  general  subject,  Clark  ment  that  the  husband  shall  be  allowed  to 

V.  Fosdick,  118  N.  Y.  7  ;  Duryea  y.  Bliven,  visit  and  associate  with  the  children  is  a 

122  N.  Y.  567  ;   Galusha  v.  Galusha,  116  material  part  of  the  contract,  and  if  vio- 

N.  Y.  635.  lated  by  the  wife,  a  recovery  for  her  bene- 

(b)  Zimmer  v.  Settle,  124  N.  Y.  37.  fit  under  the  contract  cannot  be  sustained. 

(c)  A  stipulation  in  a  separation  agree-  Duryea  v.  Bliven,  122  N.  Y.  567. 


213  THE   LAW   OF   PEKSONS. 

A  valid  separation  deed  would  naturally  assume  one  of  two 
forms  :  one,  an  agreement  with  trustees  to  pay  a  sum  of  money 
to  the  wife.  This  could  be  enforced  by  the  trustees  in  an  ordi- 
nary common-law  action.  Another  method  is  to  place  a  fund 
under  the  control  of  the  trustees,  the  income  to  be  applied  to  the 
wife's  maintenauce.  This  would  be  a  trust  for  her  separate  use, 
enforceable  in  equity.^ 

Reference  should  be  made  to  particular  clauses  that  are  some- 
times inserted  in  separation  deeds.  One  is  that  the  wife  shall  re- 
main chaste  and  virtuous,  known  as  the  dum  casta  clause. 
Where  this  is  wanting,  the  court  cannot  set  it  aside,  on  account 
of  the  unchastity  of  the  wife.^  Should  it  appear  on  the  deed  that 
a  covenant  was  drawn  with  the  intent  that  the  wife  might  be  at 
liberty  to  commit  adultery,  it  would  be  void.^ 

There  is  sometimes  a  clause  in  the  deed  that  the  wife  shall  not 
"  molest "  the  husband.  Adultery  alone  is  not  a  breach  of  this 
clause,  even  though  followed  by  the  birth  of  a  child.  There  must 
be  some  act  done  with  an  intent  to  annoy  the  husband,  and  it  must 
be  an  act  which  is  in  fact  an  annoyance.  It  would  seem  that  if 
the  wife  palmed  off  a  child,  known  by  her  to  be  spurious,  as  the 
child  of  the  husband,  there  would  be  evidence  of  molestation  to 
go  to  the  jury.^ 

A  deed  of  this  kind  may  be  made  between  the  parties,  while  an 
action  for  limited  divorce  is  pending,  to  the  effect  that  the  prop- 
erty of  the  husband  shall  be  sold,  and  from  the  net  proceeds 
after  payment  of  his  debts,  one  third  shall  be  given  to  the  wife, 
and  that  they  shall  live  separate.  On  such  an  agreement,  she 
may  bring  an  action  against  the  husband  to  recover  her  portion 
of  the  proceeds.  The  consideration  of  such  an  agreement  is  the 
release  of  the  husband's  liability  for  the  support  of  the  wife. 
Such  an  agreement  is  not  opposed  to  public  policy.^ 

(4)  Other  methods  than  a  settlement.  The  "  separate  use " 
trust  may  be  created  by  will  as  well  as  by  deed.  A  father  may, 
for  example,  devise  property  to  trustees  to  pay  the  income  to  his 
married  daughter's  separate  use,  and  free  from  her  husband's 
control.  Whatever  the  form  may  be,  a  court  of  equity  will  carry 
out  the  intention  of  the  creator  of  the  trust,  so  far  as  that  may 
be  consistent  with  the  rules  of  law. 

^  2  Spence's  Equity  Jur.  526.  *  Fearon   v.    Aylesford,    sitpra.      The 

2  Bradley  v.   Bradley,  L.   R.  7  P.  D.  case  in  the  lower  or  divisional  court  is  re- 

237  ;  Fearon  v.  Aylesford,  L.  R.  14  Q.  B.  ported  in  L.  R.  12  Q.  B.  D.  539.    On  pp. 

D.  792  (Ct.  of  Appeal).  540,541,  will  be  found  a  form  of  separation 

2  Evans  v.  Carrington,  2  De  G.  F.  &  J.  deed  containing  the  molestation  clause. 

4S1  ;  also  per  Cotton,  L.  J.,  in  Fearon  v.  &  Fettit  v.  Pettit,  107  N.  Y.  677. 

Aylesford,  supra. 


HUSBAND   AND   WIFE.  219 

As  has  already  been  stated,  it  is  usual,  in  adopting  any  of  the 
various  methods  just  described,  to  name  a  trustee  to  act  for  the 
wife.  This,  however,  is  not  a  vital  point,  except,  perhaps,  in  a 
separation  deed.  It  is  a  general  rule  that  if  no  trustee  be 
named,  or  if  one  be  named  and  be  incapable  of  serving,  or  even 
if  none  be  thought  of,  the  trust  will  not  fail.  It  is  a  rule  that 
"no  trust  shall  fail  for  want  of  a  trustee."  Should  the  hus- 
band, in  opposition  to  this  rule,  assert  a  claim  to  the  property, 
he  might  be  declared  a  trustee  by  the  court,  i 

A  Pin  Money  Trust  is  designed  to  provide  the  wife  with  annual 
means  for  dress,  decoration,  and  ornament.  It  is  not  merely 
an  allowance  for  these  purposes  to  the  wife,  but  a  trust  created 
by  a  settlement.  It  is  very  common  in  England,  "occurring 
almost  every  time  that  a  marriage  takes  place  among  persons  of 
large  fortune.  "^  It  differs  in  its  nature  from  the  ordinary 
trust  for  the  wife's  separate  use,  in  the  fact  that  while  the  latter 
absolutely  belongs  to  the  wife,  and  the  husband  has  no  right  to 
inquire  into  the  expenditure,  in  the  "pin  money  trust"  (where 
created  by  the  husband,  at  least)  he  has  an  interest  that  the 
money  shall  not  be  saved  or  hoarded  by  the  wife,  but  shall  be 
expended  annually  for  his  credit  and  pleasure,  as  well  as  for 
hers.  Accordingly,  the  court  will  not  aid  the  wife  in  collecting 
arrears  beyond  a  year  and  a  fraction,  nor  in  case  of  her  death 
will  it  allow  her  personal  representatives  to  enforce  the  trust. ^ 
The  rule  will  be  applied  though  the  wife  be  a  lunatic,  and  so 
unable  personally  to  direct  her  expenditure  of  the  money. 

The  rights  of  the  wife  over  jjroperti/  held  in  trust  for  her 
separate  use.  —  The  power  of  a  married  woman  to  bind  her  sepa- 
rate estate  grows  out  of  the  "  power  of  disposal ;  "  and  in  deter- 
mining whether  she  has  encumbered  or  transferred  it,  the 
inquiry  will  be,  whether  she  has  exercised  that  power.  It  is, 
therefore,  not  true  that  she  is  liable  in  all  respects  as  if  she  were 
single.  Thus  she  is  not  liable  in  respect  to  mere  wrongs  (or 
torts)  committed  by  her,  unless  they  are  in  some  way  connected 
with  her  estate.*  (a)     In  general,  however,  unless  restricted  by 

1  The  case  of  Rogers  v.  Rogers,  4  Paige,  2  Howard  v.  Digby,  2  CI.  &  F.  634, 
516,  appears  to  hold  that  a  trustee  or  third  670;  prr  the  Lord  Chancellor, 
person  is  vitally  necessary  to  the  validity  ^  Howard  v.  Digby,  supra.  The  Lord 
of  a  separation  deed.  This  case  is  based  Chancellor  said  of  this  trust  (p.  678),  the 
on  the  older  authorities  opposed  to  these  husband  "  has  a  right  to  have  the  pleas- 
deeds.  The  ruling  in  Rogers  v.  Rogers,  in  ure  of  it,  to  have  the  credit  of  it,  to  be 
view  of  the  later  decisions,  seems  over  spared  the  eye-sore  of  a  wife's  appearing 
technical  and  of  doubtful  authority.  See  as  misbecomes  her  station."  This  case 
Miller  v.  Miller,  16  Ohio  St.  527.  is  also  reported  in  8  Bligh,  224. 

4  AVainford  v.  Heyl,  L.  R.  20  Eq.  321. 

(a)  This  rule  has  been  changed  in  New  York  by  statute.    See  Laws  of  1890,  ch.  51. 


220  THE   LAW    OF    PERSONS. 

the  instrument  creating  the  trust,  she  may  dispose  of  her  estate 
as  freely  as  if  she  were  single.  What  she  disposes  of  is  her 
trust  interest.  By  such  a  disposition  she  does  not  in  any  way 
disturb  the  title  of  the  trustee.  She  substitutes  iu  her  stead 
another  person,  for  whom  the  trustee  in  turn  holds,  and  to  whom 
he  becomes  responsible.  This  substitute  may  be  her  husband, 
or  any  third  person.  It  results  that  while  her  real  estate,  to 
which  she  had  the  legal  title,  could  not  be  disposed  of  except  by 
a  private  acknowledgment,  her  trust  estate  could  be,  without 
that  formality. 

This  capacity  is  not  impaired  by  the  fact  that  a  particular 
mode  of  dealing  with  the  property  is  pointed  out  in  the  instru- 
ment creating  the  trust.  Other  modes  are  not  interfered  with, 
unless  specially  prohibited.  ^  The  power  of  disposition  includes 
the  capacity  to  mortgage,  as  well  as  to  sell,^  and  her  ownership 
includes  the  interest  of  the  property,  as  well  as  the  principal. 

As  to  the  mode  of  disposal,  very  little  difficulty  exists  when 
resort  is  had  to  ordinary  and  well-understood  methods  of  trans- 
fer, such  as  conveyances,  mortgages,  leases,  etc.  The  obscu- 
rity begins  when  some  informal  method  is  adopted;  and  the 
inquiry  is,  whether  it  may  be  regarded  as  a  case  of  disposal  for 
the  purpose  of  giving  some  effect  to  her  act.  For  example,  the 
married  woman  executes  an  ordinary  promissory  note  or  indorses 
it.  Looked  at  as  a  coyitract,  this  is  void  (when  there  is  no 
enabling  statute).  Can  it  then  be  construed  by  the  court  as  a 
mode  of  disposal  of  her  separate  estate,  in  the  absence  of  a  single 
word  to  that  effect?  The  later  English  authorities  hold  that  it 
can  be,  on  the  ground  that,  without  that  view,  the  instrument 
will  be  wholly  ineffective,  and  that  a  correct  rule  of  construction 
is  to  give  an  instrument  some  effect,  rather  than  to  declare  it 
nugatory.  This  view  is  adopted  in  some  of  the  American 
courts. 

The  New  York  courts,  followed  by  those  of  some  other  States, 
adopted  a  more  technical  and  rigorous  doctrine.  The  theory 
there  maintained  is  that  there  must  be  words  indicative  of  an 
iiifxntion  to  dispose  of  the  separate  estate,  unless  the  engagement 
is  for  the  benefit  of  the  separate  estate,  or  for  her  own  benefit 
on  the  credit  of  her  separate  estate,  (a)     For  example,  she  could 

1  Jaques  v.  Methodist  Episcopal  Church,  2  Demarest  v.  Wyukoop,  3  Johns.  Ch. 

17  Johns.  548.  129. 


(a)  It  is  the  English  doctrine  that  a  estate  in  order  to  make  her  separate  estate 

married  woman  must  have  some  separate  liable.      Stogdon  v.    Lee  [1891],   1  Q.  B. 

property  at  the  date  of  the  contract  by  661.      See   also   Lee   v.    Cohick,    39    Mo. 

which  she  purports  to  bind  her  separate  672. 


HUSBAND   AND   WIFE,  221 

not  by  n,  mere  promissory  note  make  herself  liable  for  her  hus- 
band's debts.  There  must  be  words  m  the  note,  such  as  "I 
charge  my  separate  estate. "^  The  same  rule  is  applied  to  a 
mere  indorsement.''^  The  fact  that  she  gives  her  husband  a 
promissory  note  to  be  discounted  at  a  bank  does  not  raise  any 
presumption  that  it  was  for  the  benefit  of  her  estate,  and  it 
will  not  be  a  charge  upon  it  without  words  indicative  of  such 
an  intention.^ 

These  propositions,  since  the  statute  of  1884,  ch.  381,  already 
referred  to,  are  to  be  taken  with  the  qualifications  made  neces- 
sary by  its  provisions;  for  since  that  statute  she  may  make 
contracts  as  if  she  were  at  the  time  unmarried,  (a)  The  statute 
will  not  be  retroactive,  so  as  to  make  transactions  valid  which 
were  invalid  when  they  took  place. 

Assuming  that  a  married  woman  has  power  to  deal  with  her 
separate  estate,  some  important  practical  consequences  are  to  be 
noted.  She  may  become  her  husband's  creditor.  She  may  be 
a  surety  for  his  debts,  having  the  ordinary  remedies  of  sureties 
against  him.  Whether  in  making  advances  for  him  she  will  be 
a  surety  or  not  will  depend  upon  her  intention.  This  intention 
may  be  presumed  from  circumstances.  If  she  joins  with  her 
husband  in  a  mortgage  upon  her  land,  the  presumption  is  that 
she  is  a  surety.^  {h)  The  cases  in  the  notes  show  how  she  may 
proceed  to  reimburse  herself  for  her  expenditures  as  surety.^ 
Had  the  money  been  appropriated  to  her  use,  as  in  making 
improvements  upon  her  land,  the  case  will  lack  the  necessary 
elements  of  suretyship.^ 

On  similar  principles,  she  might  buy  up  claims  against  him, 
enforce  them  as  creditor,  obtain  judgment,  and  sell  his  property 
on  execution,  and  if  the  husband  should  make  an  assignment  of 
his  estate  in  payment  of  his  debts,  his  wife  might  be  included 
as  a  creditor.' 

1  Yale  V.  Dederer,  18  N.  Y.  265;  s.  c.         *  Loomer  v.  "Wheelwright,  3  Sandf.  Ch. 

22  Id.  450,  and  68  Id.  329.     This  is  the  135. 
leading  case  upon  this  subject.  5  Neimcewicz  v.  Gahn,  3  Paige,  614  ;  on 

-  Coin  Exch.  Ins.  Co.  v.  Babcock,  42  appeal    Gahn    v.   Niemcewicz,    11  Wend. 

N.  Y.  613.  312  ;  Hawley  v.  Bradford,  9  Paige,  200. 

3  Saratoga  County  Bank  v.  Pruyn,  90  ®  Dickinson2).Codwise,l  Sandf.  Ch.  214. 
N.  Y.  250.  7  Danforth  v.  Woods,  11  Paige,  9. 


(a)  Bowery  Nat.  Bank  v.  SnifTen,   54  her  on  her  sole  and  separate  account.   This 

Hun,  394.    See  also  Laws  of  1892,  ch.  594.  section  was  not  repealed  by  ch.  381,  Laws 

Under  §  1273  of  the  Code  of  Civil  Pro-  of   1884,   as   a  judgment   is   not  a  con- 

cedure   a    married    woman    may    confess  tract  within  the  meaning  of  that  statute, 

judgment  if  the  debt  was  contracted  for  White  v.  Wood,  49  Hun,  381. 

the  benefit  of  her  sole  and  separate  estate,  {b)  Barrett    v.    Davis,    16   S.   W.    K. 

or  in  the  course  of  business  carried  on  by  377. 


222  THE    LAW    OF    PERSONS, 

After  the  courts  of  equity  had  established  the  doctrine  that 
a  married  woman  could  deal  with  her  separate  property  as  if 
single,  it  was  found  that  this  theory  sometimes  practically  de- 
feated the  very  purpose  for  which  separate  estates  were  intended. 
The  wife  had  the  capacity  to  give  the  property  to  her  husband, 
so  that  in  an  indirect  way  he  might  succeed  in  placing  himself 
in  the  same,  or  even  in  a  more  favorable  position  as  to  her  prop- 
erty than  he  held  at  the  common  law.      Moreover,  these  separate 
estates  could  be  squandered  or  wasted  by  ill-judgment  or  extrav- 
agance on  the  wife's  part,  and  the  intentions  of  parents  or  other 
friends  to  provide  a  permanent  source  of  income  be  frustrated. 
To  remedy  these  defects  in  the  system,  the  clause  against  antici- 
pation was  devised.  1     The  meaning  of  this  is,  a  clause  prevent- 
ing the  woman  from  disposing  of,  or  impairing  the  capital  of 
a  fund  set  apart  for  her  use,  and  confining  her  to  the  income 
as  it  accrues.      "  A  married  woman  having  power  to  alien  "  in 
the  language  of  Lord  Eldon  "  is  a  mere  creature  of  equity  to 
the  extent  to  which  the  settlement  constitutes  her  a  feme  sole 
and  no  farther. "  ^    Where  this  clause  is  inserted  in  a  settlement, 
a  wife  cannot  dispose  of  the  capital  of  property  held  by  a  trustee 
for  her  separate  use.      Such  a  clause  affecting  her  other  property 
would    be   void   under   the  same  circumstances  as  if  she  were 
single.^     The  clause  against  anticipation  may  be  imposed  while 
a  woman  is  single   in  contemplation  of  marriage;    it  will    be 
inert  until   marriage  takes  place;    it  will  be  effective  during 
marriage,  and  will  become  inoperative  during  widowhood ;  but 
if  drawn  with  apt  words  will  revive  on  a  subsequent  marriage, 
and  remain  operative  during  its  continuance.*  (a) 

This  clause  (against  anticipation)  is  continued  in  force  in 
England,  notwithstanding  the  recent  legislation  enlarging  the 
capacity  of  married  women  to  act  and  to  contract.^ 

This  clause  is  unnecessary  in  New  York  and  some  other  States, 
by  reason  of  a  statutory  trust,  which  may  be  created,  not  merely 

1  Lord  Thurlow  is  said  to  have  de-  ^  Baggett  v.  Meux,  1  Colly.  138. 
vised    the     clause     against     anticipation.  *  Tullett  v.  Armstrong,  4  M.  &  C.  390, 
Taylor  v.  Meads,  4  De  G.  J.  &  S.  597,     406. 

604.  ^  Married   "Women's   Property   Act   of 

2  Jackson  r.  Hobhouse,  2  Merivale,  483,  1S82.  45  &  46  Vict.  c.  75,  §  19;  Pike 
487  ;  Brandon  v.  Robinson,  18  Ves.  429,  v.  Fitzgibbon,  L.  R.  17  Ch.  D.  454.  Cf. 
434  ;  Tullett  v.  Armstrong,  1  Beav.  1,  23;  Myles  v.  Benton,  14  L.  R.  (Ir.)  258. 

on  appeal,  4  M.  &  C.  390,  393. 

(a)  A  different  rule  prevails  in  Penn-  avail  unless  the  income  is  given  to  her  for 

sylvania.     Quin's  Estate,  144  Pa.  St.  444.  her  separate  use.     Stogdon  v.  Lee  [1891], 

A  restraint  upon  the  alienation  of  an  1  Q.  B.  661. 
income  given  to  a  married  woman  is  of  no 


HUSBAND    AND    WIFE.  223 

in  favor  of  married  women,  but  of  any  and  all  beneficiaries. 
This  is  a  conveyance  of  property  to  a  trustee  to  receive  its  rents, 
profits,  or  income,  and  to  apply  them  to  the  use  of  the  beneficiary 
during  his  life,  or  for  a  shorter  period.  The  interest  of  the 
beneficiary  is  made  inalienable.  It  cannot  even  be  destroyed  by 
order  of  the  court.  ^  The  trust  can  be  made  applicable  both  to 
real  and  personal  property.  ^  The  expression  "  apply  to  the  use  " 
of  the  beneficiary  has  been  construed  to  mean  no  more  than  to 
"pay  over"  to  him.^  The  income  of  a  fund  cannot  in  this 
manner  be  withdrawn  wholly  from  the  beneficiary's  creditors. 
They  may  claim  any  surplus  beyond  what  is  necessary  to  yield 
him  a  fair  support.* 

Many  difficult  questions  of  mterpretation  and  construction 
arise  in  marriage  settlements.  Prominent  among  these  is  the 
inquiry  whether  if  the  parties  be  domiciled  in  one  country,  and 
married  in  another,  the  law  of  the  domicile  is  to  be  regarded 
or  the  law  of  the  place  of  the  marriage.  Questions  might  also 
arise,  when  the  domiciles  of  the  parties  were  different,  as  to 
which  law  should  be  followed.  In  general,  the  construction  of 
instruments  affecting  real  estate  depends  upon  the  law  of  the 
place  where  it  is  situated,  while  if  personal  property,  the  law 
of  the  place  of  the  contract  is  to  be  regarded.  In  a  marriage 
settlement,  regard  is  to  be  had  in  the  first  instance  to  the  law 
of  the  husband's  domicile.^ 

But  the  parties  may  contract  that  their  rights  shall  be  subject 
to  some  other  law,  and  this  contract  will  bind  them.  In  this 
case,  the  construction  depends  upon  the  intention  of  the  parties, 
as  disclosed  in  the  terms  of  the  settlement.^ 

By  the  statute  law  of  New  York  all  contracts  made  in  con- 
templation of  marriage  remain  in  full  force  after  the  marriage 
takes  place." 

Section  V.  —  Other  rights  and  disahilities. 

There  are  grouped  together  in  this  section  several  cases  of  a 
miscellaneous  nature. 

Poiver  of  a  married  tvoman  to  make  a.  will. —  (1)  Of  real 
property. —  A  married  woman  has  no  power  by  general  rules 
of  law  to  make  a  will  of  real  property.  The  power  to  devise 
land  did  not  exist  in  the  early  law,  except  in  special  localities 

1  Douglas  V.  Crnger,  80  N.  Y.  15.  Cannan,  18  Beav.  128  ;  Byam  v.   Byam, 

2  Graff  u.  Bonnett,  31  N.  Y.  9.  19  Id.  58;  Le  Breton  v.  Miles,   8   Paige, 

3  Leggett  V.  Perkins,  2  N,  Y.  297.  261. 

*  Williams  v.  Thorn,  70  N.   Y.   270  ;  «  Este   v.    Smyth,  18  Beav.   112  ;  see 

citing   and   distinguishing  a  number    of  Chamberlain  v.  Napier,  L.  R.  15  Ch.  D. 

earlier  cases.  614. 

6  Dicey  on  Domicil,  273;   Duncan  v.         ^  Laws  of  1848,  ch.  200,  §  4. 


224  THE   LAW   OF   PEKSONS. 

in  England,  where  it  prevailed  by  local  custom.  The  general 
power  was  first  conferred  by  statutes  passed  in  the  reign  of 
Henry  VIII.  ^  Married  women  were  expressly  excepted  in  the 
statute  of  34  &  35  Henry  VIII.  c.  5  (§  14),  so  that  their  disa- 
bility to  devise  land  continued. 

The  power  to  devise  was  not,  according  to  some  authorities, 
conferred  by  implication  when  courts  of  equity  recognized  the 
unrestricted  ownership  by  the  wife  of  her  separate  estate.  To 
meet  this  difficulty,  if  it  existed,  the  following  device  was 
resorted  to.  The  owner  of  real  property  in  settling  it  upon  a 
married  woman,  or  in  bestowing  it  upon  her  in  any  form,  would 
confer  upon  her  a  "power"  or  authority  to  dispose  of  it,  or, 
more  specifically,  to  devise  it  by  her  will.  This  power  might 
be  created  by  herself  while  single,  or  it  might  be  originated  by 
others.  In  either  case,  she  derived  her  authority  from  one 
who  was  not  at  the  time  under  any  incapacity.  The  making  of 
the  will  by  her  (called  the  "execution  of  the  power")  by  a  legal 
fiction  related  back  to  the  time  when  the  power  was  created. 
Accordingly,  if  she  had,  while  single,  conferred  the  power  upon 
herself,  when  married  it  would  be  considered  that  the  single 
woman  made  the  will  through  the  instrumentality  of  the  married 
woman.  2 

The  more  modern  English  authorities  hold  that  no  special 
words  creating  a  power  are  necessary.  These  maintain  that  a 
married  woman,  when  not  restrained  from  alienation,  has  in 
equity  the  same  power  of  disposal  over  her  "  separate  estate  " 
by  deed  or  will  as  she  would  have  if  free  from  the  disability  of 
coverture.  Assuming  that  a  power  is  necessary,  the  general 
words  "instrument  in  writing"  will  include  a  will.^  If  an 
estate  be  given  to  a  married  woman  for  her  separate  use  for 
life,  with  full  power  to  dispose  of  the  remainder  by  deed  or 
will,  she  has  in  equity  the  entire  interest.* 

(2)  As  to  personal  property.  —  It  is  conceded  that  any  restric- 
tions which  may  exist  as  to  devises  of  real  estate  do  not  extend 
to  personal  property.  The  will  as  to  this  property  takes  effect 
as  one  of  the  modes  of  exercising  the  right  and  power  of  disposal, 
unless  there  be  some  statutory  provision  to  the  contrary. 

The  Revised  Statutes  of  New  York  ^  withdrew  from  the  wife 
capacity  to  make  a  will  of   personal  property  at  least,  unless 

1  32  Henry  VIII.  c.  1,  and  34  &  B5  3  Taylor  v.  Meads,  4  De  G.  J.  &  S.  597  ; 
Henry  VIII.  c.  5.  Adams  v.    Gamble,    12   Irish    Ch.    102  ; 

2  Peacock   v.  Monk,  2   Ves.  Sr.  190  ;  Sugden  on  Powers,  173  (8th  ed.). 
Bradish  v.  Gibbs,  3  Johns.  Ch.  523 ;  Re-  *  London   Chartered  Bk,  of  Australia 
marks  of  Denio,  J.,  in  Wadhams  v.  Am.  v.  Lempriere,  L.  R.  4  P.  C.  App.  572. 
Missionary  Soc,  12  N.  Y.  415,  422.                    6  2  R.  S.  60,  §  21,  3d  ed. 


HUSBAND   AND   WIFE.  225 

a  "power  "  were  given  to  her.  Whether  a  power  would  suffice 
is  not  settled.  This  was  a  reactionary  statute,  and  out  of  har- 
mony with  tlie  general  progress  of  the  law.  It  was  repealed  in 
1849.1  j^^  present  a  married  woman  has  in  New  York  the  power 
to  dispose  of  all  her  property  by  will,  unless  there  be  some  re- 
straint by  agreement  or  statute.  It  is,  however,  necessary  to  be 
familiar  with  the  former  law  to  solve  questions  arising  while 
it  was  in  force. 

Right  of  either  party  to  the  society  of  the  other.— T\\qvq  is  no 
direct  method  in  this  country  by  which  a  court  can  compel 
a  wife  to  reside  with  her  husband.  The  writ  of  habeas  corpus 
cannot  be  used  for  this  purpose.  ^  In  England,  a  suit  could  be 
maintained  in  the  ecclesiastical  court  for  "the  restitution  of 
conjugal  rights."  The  same  rule  applies  to  the  existing  divorce 
court,  (a)  Its  object  is  to  compel  a  deserting  party  to  return  to 
matrimonial  cohabitation.  Nothing  can  be  pleaded  as  a  bar 
to  such  a  suit,  except  such  facts  as  would  entitle  the  party 
defendant  to  a  decree  for  judicial  separation,^  or  to  a  divorce 
for  the  wife's  adultery."*  This  proceeding  is  not  known  in  this 
country.  If  a  husband  use  forcible  means  to  compel  a  wife  to 
live  with  him  he  may  be  resisted  as  a  wrong-doer.^  (;^) 

A  husband  will  have  an  action  against  a  person  who  wrong- 
fully entices  his  wife  away  from  him,  or  "  harbors  "  her,  so  that 
she  may  not  return,  (c)  The  basis  of  the  action  is  a  wrongful 
intent.  The  word  "harboring"  involves  active  interference, 
and  does  not  refer  to  the  mere  act  of  providing  a  wife  with  food 
and  shelter  from  motives  of  affection  or  humanity.  A  father 
may  be  liable  as  well  as  a  stranger,  though  a  stronger  case 
would  have  to  be  made  out  against  him.^     Thus  he  would  not  be 

1  Laws   of  1849,  ch.   375.     See  Wad-  &  Pillow  v.  Bushnell,  5  Barb.  156. 
hams  u.  Am.  Missionary  Soc,  12  N.  Y.  415.  ^  Hutcheson    v.   Peck,   5  Johns.   196; 

2  People  V.  Mercein,  8  Paige,  47.  Schunenian  v.  Palmer,  4  Barb.  225  ;  Ben- 

3  Burroughs  v.  Burroughs,  2  Sw.  &  T.  nett  v.  Smith,  21  Barb.  439  ;  Barnes  v. 
303.  Allen,  30   Barb.  663  ;    White  v.  Ross,  47 

4  Hope  V.  Hope,  1  Sw.  &  T.  94.  Mich.  172. 

(a)  For  examples  of  such  suits  see  the  alienation  of  his  affection.  Bennett  7,\ 
Smith  V.  Smith,  L.  R.  15  P.  D.  47  ;  Field  Bennett,  116  N.  Y.  584  :  Baker  v.  Baker, 
V.  Field,  L.  R.  14  P.  D.  26  ;  Mason  v.  16  Abb.  N.  C.  293  ;  Jaynes  v.  Jayites, 
Mason,  61  L.  T.  R.  304.  39  Hnn,  40  ;   Breiman  v.  Paasch,  7  Abb. 

(b)  The  Queea  v.  Jackson,  [1891],  1  Q.  N.  C.  249  ;  Haynes  v.  Nowlin,  129  Ind. 
B,  671.  581;  Warren  v.  Warren,   89  Mich.   123; 

(c)  Since  the  enactment  of  statutes  al-  Warner  v.  Miller,  17  Abb.  N.  C.  221  ; 
lowing  the  wife  to  sue  in  her  own  name  Churchill  v.  Lewis,  Id.  226;  Foot  v.  Card, 
for  injuries  suffered  to  person,  property,  or  58  Conn.  1;  contra,  DuiSes  v.  Duffies, 
character,  an  action  may  be  maintained  in  76  Wis.  374  ;  Van  Arnam  v.  Ayres,  67 
most  of  the  States  of  the  Union  by  the  Barb.  544;  Doe  v.  Roe,  82  Me.  503. 

wife  for  loss  of  her  husband's  society  and 

15 


226  THE    LAW   OF    PERSONS. 

liable  if  he  acted  in  good  faith,  believing  mistakenly  that  she 
was  cruelly  treated.  ^  It  has  been  held  that  a  husband  may 
maintain  an  action  against  a  druggist  for  clandestinely  selling 
to  his  wife  from  time  to  time  quantities  of  laudanum  to  be  used 
as  a  beverage,  to  the  detriment  of  her  health.  ^ 

If  the  wife  be  injured  by  a  third  person,  so  that  the  husband 
loses  her  services  or  society,  he  has  a  cause  of  action  for  loss  of 
service.  She  may,  under  the  recent  statutes,  sue  for  the  per- 
sonal injury  sustained  by  herself  without  joining  the  husband's 
name.  If  the  injury  caused  instantaneous  death,  no  action  will 
lie  by  the  husband,  unless  there  be  a  statute  allowing  it,^ 
Should  there  be  an  interval  between  the  injury  and  the  death, 
during  which  the  husband  lost  her  services  and  society,  there 
would  be  a  cause  of  action  in  his  favor. "^  On  similar  grounds, 
the  husband  will  have  an  action  against  an  adulterer  for  the 
seduction  of  his  wife,  in  which  exemplary  damages  may  be 
recovered.^ 

Rights  of  the  parties  to  a  marriage  under  the  '•'- Civil  Damage 
Acf''  —  The  phrase  "Civil  Damage  Act  "  is  in  common  use  to 
indicate  statutes  of  recent  origin  prevailing  in  a  number  of  the 
States,  giving  to  husband  or  wife,  parent  or  child,  the  right  to 
recover  damages  for  an  injury  done  by  an  intoxicated  person 
to  one  standing  either  in  marital  or  filial  relations,  from  the 
person  who  sold  or  gave  the  intoxicating  liquors  to  the  wrong- 
doer. In  some  cases  the  statute  includes  the  owner  of  the 
premises  where  the  liquor  is  sold.  Though  this  legislation 
extends  to  parent  and  child  as  well  as  husband  and  wife,  yet  the 
decisions  are  much  the  most  numerous  where  the  wife  is  the 
injured  person,  and  on  that  account  the  subject  is  considered 
now.  The  statutes  in  the  various  States  are  not  identical  in 
language,  though  they  bear  a  close  resemblance.^  («) 

The  following  principles  of  a  general  nature  have  been  decided 
under  these  acts :  — 

(1)  This  legislation  is  not  unconstitutional.  The  State  Legis- 
lature, having  control  of  the  subject  of  the  traffic  in  intoxicat- 
ing liquors,  may  make  such  regulations  as  are  in  its  judgment 
best  calculated  to  prevent  the  evils  resulting  from  intoxication, 

1  Smith  V.  Lyke,  13  Hun,  204.  <  Philippi  v.  Wolff,  14  Abb.  Pr.  n.  s. 

2  Hoard  v.  Peck,  56  Barb.  202.  196. 

3  This  point  in  its  general  statement  ^  Smith  v.  Hasten,  15  Wend.  270. 
belongs  under  the  topic  of  "  Injury  caus-  ^  For  the  New  York  Statute,  see  Laws 
ing  death."  of  1873,  ch.  646. 


{a)  See  also  Laws  of  1892,  ch.  401,  §  40,  and  ch.  403,  §  2. 


HUSBAND   AND   WIFE.  227 

and  accoraingly  to  make  a  liquor  seller  responsible  for  conse- 
quential damages  resulting  from  the  sale.  ^ 

(2)  The  statute  in  some  States  permits  the  action  to  be 
brought  against  the  seller  and  the  owner  of  the  premises  on 
which  the  sale  is  made,  (a)  The  seller  will  be  liable  even  though 
the  liquor  be  sold  by  the  bartender  against  his  instructions. ^ 
The  owner  is  not  made  liable  unless  he  knew  of  the  sale  of 
ardent  spirits  on  the  premises,  or  permitted  it.  ^  (5)  It  is  not 
necessary,  however,  that  the  strict  relation  of  landlord  and 
tenant  exist.  The  owner  will  be  liable  if  it  appear  that  he 
knowingly  permitted  the  sale  on  the  premises.^  Where  notice 
is  required  to  the  liquor  seller,  as  in  some  statutes,  it  is  enough 
to  follow  the  substance  of  the  statute  without  using  its  very 
language.^  (c) 

(3)  The  injury  done  by  the  sale  may  be  of  three  kinds :  to  the 
person,  to  the  property,  or  to  the  means  of  support.  The  principal 
decisions  have  been  made  upon  the  "means  of  support."  This 
does  not  mean  merely  a  cause  of  action  existing  against  the 
intoxicated  person,  and  extended  by  the  statute  to  include  the 
seller,  etc.,  but  it  embraces  a  wholly  new  cause  of  action.^  It 
must  be  made  to  appear  that  the  claimant  had  his  means  of 
support  so  far  reduced  as  no  longer  to  have  adequate  means  of 
maintenance.'  A  wife  may  maintain  the  action  on  this  basis. 
So  also  may  a  husband  for  injury  to  his  "means  of  support"  by 
the  intoxication  of  his  wife.^ 

If  death  results,  there  may  be,  according  to  some  authorities, 
a  sufficient  injury  to  "  the  means  of  support "  by  the  death  to 
make  the  action  maintainable.^     The  Massachusetts  court  does 

1  Bertholf  v.  O'Reilly,  74  N.  Y.  509.  «  Volans  v.  Owen,  74  IST.  Y.  526. 

■i  Smith    V.    Reynolds,    8   Hun,    128  ;  ''  Hill  v.  Berry,  75  N.  Y.  229  ;  Qnain 

George  v.  Gobey,  128  Mass.  289.  v.  Russell,  8  Hun,  319  ;  s.  c.  12  Id.  376  ; 

3  Mead  v.  Stratton,  8  Hun,  148;  Loan  Schneider  v.  Hosier,  21  Ohio  St.  98. 

V.  Etzel,  62  Iowa,  429.     This  rule  should  «  Moran  v.  Goodwin,  130  Mass.  158. 

only  be  applied  to  those  who  control  the  ^  .Tackson  v.  Brookins,   5   Hun,   530  ; 

letting  of  the  projierty.    Castle  v.  Fogerty,  Mead  v.  Stratton,  87  N.  Y.  493  ;  Davis  v. 

19  111.  App.  442.  Standish,    26   Hun,   608.      This  rule  has 

*  Mead   v.    Stratton,    87  N.   Y.    493  ;  even  been  extended  to  the  case  of  the  sui- 

Bertholf  y.  O'Reilly,  8  Hun,  16;  affirmed,  cide  of  the  intoxicated  person.     Blotz  v. 

74  N.  Y.  509.  Rohrbach,  42  Hun,  402  ;  Neu  v.  McKech- 

5  Kennedy  v.  Saunders,  142  Mass.  9  ;  nie,  95  N.  Y.  632. 
construing  Pub.  Stats,  ch.  100,  §  25.    See 
also  Tate  v.  Donovan,  143  Mass.  590. 


(a)  Under  some  statutes  the  liquor  sel-  of  the  letting  is  imputable  to  the  hand- 
ler's bondsmen  are  made  liable.     Wardell  lord.     Hall  v.  Germain,  131  N.  Y.  536. 
V.  McConnell,  23  Neb.  152  ;  Doty  v.  Pos-  (c)  Notice  to  the  liquor  seller  is  now 
tal,  87  IVIich.  143.  required  in  New  York.    Laws  of  1892,  ch. 

(&)  Knowledge  of  the  agent  at  the  time  401,  §  40,  and  ch.  403,  §  2. 


228  THE   LAW   OF   PEESONS. 

not  follow  this  line  of  decisions.  ^  The  theory  of  the  New  York 
court  is  that  it  is  not  essential  to  show  that  the  act  of  the 
intoxicated  person  causing  the  injury  was  the  natural,  reason- 
able, or  probable  consequence  of  the  intoxication,  (a)  It  is 
enough  to  show  that  the  act  was  done  while  the  person  was 
intoxicated  in  whole  or  in  part  by  liquors  sold  by  the  defendant. 
The  intoxicated  person  may,  accordingly,  commit  suicide,  and 
so  deprive  his  wife  of  the  "means  of  support,"  or  he  may  murder 
another,  and  so  deprive  that  person's  wife  of  the  "  means  of  sup- 
port." In  either  case,  the  liquor  seller  will  be  liable,  and  his 
liability  is  not  affected  by  the  fact  that  the  intoxicated  person 
was  committing  a  crime. ^  Similar  principles  have  been  applied 
in  favor  of  the  intoxicated  person  himself,  where  he  became 
frozen  while  intoxicated.  ^ 

(4)  A  difficult  question  is  raised  where  the  intoxication  is 
created  by  the  sales  or  gifts  of  several  distinct  persons,  no  one 
of  which  is  sufficient,  while  each  contributes  to  the  result.  The 
New  York  statute  seems  to  provide  for  this  case  by  declaring 
that  the  person  shall  be  liable  who  caused  the  intoxication  "  in 
whole  or  in  part. "  The  correct  rule  would  seem  to  be  that  either 
of  the  sellers  is  liable,  and  that  he  cannot  defend  himself  by 
urging  that  he  did  not  wholly  cause  the  drunkenness.  Any 
such  construction  would  greatly  impair  the  beneficent  effect  of 
the  statute.*  Some  courts  hold  that  the  sellers  in  such  a  case 
may  be  sued  jointly.^  This  principle  has  not  been  adopted  in 
New  York.^  The  wife  and  the  children  may  sustain  distinct 
injuries  under  this  class  of  statutes.  In  such  a  case,  a  recovery 
by  the  wife  would  not  preclude  an  action  in  behalf  of  the 
children. 

(5)  The  seller  will  be  equally  liable  whether  he  sell  with  or 
without  a  license,  {h)  If  he  have  a  license  he  runs  a  risk  that 
the  liquor  sold  may,  either  in  whole  or  in  part,  intoxicate  the 
purchaser ;  in  which  case  he  must  submit  to  an  action  for  result- 
ing damages.     There  is,  however,    this  distinction,  that  if  he 

1  Barrett  v.  Dolan,  130  Mass.  366.  ^  Rantz   v.    Barnes,    40    Ohio  St.    43  ; 

2  Neu  y.  McKechnie,  95  N.  Y.  632.         O'Leary   v.    rrisbe)%   17  111.    App.    553; 
8  Buckmaster  v.  McElroy,  20  Neb.  557.     Roose  v.  Perkins,  9  Neb.  304. 

4  Bryant  v.  Tidgewell,   i33  INlass.  86  ;  ^  Jackson  v.  Brookins,  5  Hun,  530. 

Steele  v.  Thompson,  42  Mich.  594  ;  Boyd 
V.  Watt,  27  Ohio  St.  259. 


(a)  It  must  appear,  however,  that  the         (5)  This  is  not  the  rule  in  all  States, 

liquor  was  furnished    to    the   individual  In    Michigan   a   recovery  cannot  be  had 

whose  intoxication  caused  the  injuries  com-  unless  the  liquor  causing  the  intoxication 

plained  of.     Dudley  u.  Parker,  132  N.  Y.  was  furnished  in  violation  of  law.   Peacock 

386.  V.  Oaks,  85  Mich.  578. 


HUSBAND   AND   WIFE.  229 

sell  without  a  license,  he  may  be  liable  to  exemplary  damages. 
This  is  particularly  true  if  he  has  sold  for  a  long  time  without  a 
license.^ 

The  theory  of  this  legislation  appears  to  be  sound.  It  goes 
upon  the  ground  that  the  domestic  relations  create  rights  in  favor 
of  each  party  to  the  relation,  which  in  certain  cases  are  not 
dependent  for  their  existence  on  the  absence  of  fault  in  the  other 
party,  but  which  may  be  enforced  against  a  third  person,  not- 
withstanding the  wrong,  neglect,  or  consent  of  the  other  party  to 
the  relation.  It  is  on  this  ground  that  a  father  may  sue  for  the 
seduction  of  a  daughter,  or  a  master  for  the  seduction  of  a  ser- 
vant, or  a  husband  for  the  seduction  of  a  wife,  notwithstanding 
the  consent  or  participation  of  each  in  the  wrong.  This  statute 
is  an  extension  of  an  existing  principle  to  a  new  class  of  in- 
stances growing  out  of  the  sale  and  acceptance  of  intoxicating 
liquors,  and  the  intoxication  resulting  from  their  use,  and  the 
consequent  injury  to  one  standing  in  one  of  the  relations  already 
referred  to.  The  cases  which  permit  the  intoxicated  party 
himself  to  sue  proceed  on  a  different  and  more  questionable 
principle. 

The  wife^s  right  to  protection  from  personal  violence.  —  It  was 
formerly  laid  down  as  a  rule  that  the  husband  might  correct  his 
wife  by  the  infliction  of  blows  to  a  moderate  extent.^  This  rule 
is,  however,  contrary  to  the  general  tenor  of  professional  and 
judicial  opinion  at  the  present  day.^  The  wife  may  compel  the 
husband  to  give  bonds  to  keep  the  peace  under  such  circum- 
stances. She  cannot,  however,  bring  a  civil  action  for  damages 
against  him  for  an  assault  or  other  personal  wrong.*  A  wife, 
after  being  divorced  from  her  husband,  cannot  sue  him  for  an 
assault  committed  during  the  marriage.^  Should  she  be  unlaw- 
fully imprisoned  by  him,  the  court  will  grant  her  the  writ  of 
habeas  corpus.^ 

A  married  woman'' s  right  to  her  hushand^s  surname.  —  Mar- 
riage confers  a  name  upon  a  woman  which  becomes  her  actual 
name,  and  she  can  only  obtain  another  by  reputation  of  such  a 
character  and  extent  as  to  obliterate  her  married  name.'^ 

1  Neu  V.  McKechnie,  95  N.  Y.  632.  ^  People  v.  Winters,  2  Park.  Cr.  10. 

2  Bracton  says  a  man's  "  wife  is  under  *  Schultz  v.  Schultz,  89  N.  Y.  644,  ra- 
the rod."  Vol.  I.  47.  Twiss'  Ed.  A.  i).  1878.  versing  Schultz  v.  Sehultz,  27  Hun,  26. 
This  doctrine  was  followed  in  North  Caro-  5  Phillips  w.Barnet,  L.R.  1  Q.  B.  D.  436. 
Una  in  a  recent  case  to  this  extent,  that  a  ^  /,i  re  Cochrane,  8  Dowl.  630.*  The 
man  may  whip  his  wife  with  a  switch  as  circumstances  under  which  the  court  will 
largo  as  liis  finger,  hut  not  larger  than  his  refuse  the  writ  are  stated  in  this  case.  See 
thumb,  without  heing  guilty  of  an  assault,  also  Lord  Vane's  Case,  13  East,  171,  n. 
State  V.  Rhodes,  Phillips  Rep.  (N.C.)  453  '^  Fendall  v.  Goldsmid,  L.  R.  2  P.  D. 
(1868).  263. 


230  THE   LAW   OF   PEKSONS. 

The,  domicile  of  the  husband  is  that  of  the  wife.  —  It  is  a  gen- 
eral rule  that  the  domicile  of  the  wife  is  that  of  the  husband,  and 
so  continues  after  widowhood  until  she  acquires  a  new  one.^  It 
has  even  been  said  that  the  husband  may  establish  his  domicile 
in  any  part  of  the  world,  and  that  it  is  the  duty  of  the  wife  to 
follow  him.  2  This  rule  may  have  an  important  effect  upon  the 
wife's  capacity  to  contract  under  the  recent  "  Married  Women's 
Acts. "  The  general  capacity  of  the  wife  depends  upon  the  law 
of  the  domicile,  and  the  husband  may,  by  his  sole  act,  according 
to  this  theory,  enlarge  or  impair  this  capacity,  or  modify  it 
from  time  to  time. 

The  rule  is  subject  to  some  qualifications.  It  does  not  fully 
apply  to  actions  for  divorce,  in  which  a  wife  may  obtain  a 
separate  domicile  from  that  of  the  husband.  So  if  a  wife  has 
been  judicially  separated  from  her  husband,  she  may  become  a 
citizen  of  a  different  State,  so  as  to  enforce  the  decree  in  a 
United  States  court. ^ 

The  fact  that  the  parties  live  apart  under  a  separation  deed 
does  not  give  the  wife  the  power  to  acquire  a  domicile  of  her 
own.^  It  was  considered  doubtful  whether  even  a  judicial  sepa- 
ration would  lead  to  the  inference  that  the  wife  might  change 
her  domicile  by  her  own  act.^  Under  the  English  law,  the  wife 
must,  as  a  rule,  seek  her  remedy  for  matrimonial  wrongs  in  the 
courts  of  the  country  where  her  husband  is  domiciled.^  Under 
recent  decisions,  the  capacity  of  a  married  woman,  being  an 
infant,  to  deal  with  her  property,  depends  upon  the  law  of 
her  domicile,  instead  of  the  place  where  the  contract  is  made.''' 

Husband  and  wife  as  witnesses  for  or  against  each  other.  —  The 
rules  of  the  common  law  are  very  rigorous  in  excluding  the 
testimony  of  the  parties  to  a  marriage,  either  for  or  against  each 
other,  both  in  civil  and  criminal  cases.  This  is  both  on  the 
ground  of  their  legal  identity,  and  from  rules  of  public  policy. 
One  is  a  technical  ground,  and  the  other  matter  of  substance. 
Considered  as  a  rule  of  public  policy  a  wife  should  not  be 
allowed  in  an  action  after  the  husband's  death  ao;ainst  his  exec- 


1  Bloxam  v.  Favre,  L.  R.  9  P.  D.  130 ;  488 ;   Dolphin  v.  Robins,  7  H.  L.  Cases, 
III  re  Cooke's  Trusts,  56  L.  J.  Ch.  637.  390.     This  is  an  important  case. 

2  Hair  v.  Hair,  10  Ricli.  (S.  C)  Eq.  163.         ^  Eemarks  of  Lord  KiNGSDOWN.     7  H. 
This  rule  does  not  apply  to  the  case  where  L.  Cases,  420. 

a  hushand  leaves  his  domicile  and  resides  ^  Firebrace  v.  Firebrace,  L.  R.  4  P.  D. 

abroad   in   order   to   avoid   his   creditors.  63.    See  also  Yelverton  v.  Yelverton,  1  Sw. 

Pitt  V.  Pitt,  4  Macq.  H.  L.  Cases,  627.  &  T.  574. 

3  Barber  v.    Barber,    21    How.    U.    S.  ^  j^  re  Cooke's  Trusts,  56  L.  J.  Ch. 
582.  637,  following  Sottomayor  v.  De  Barros, 

*  Warrender  v.  Warrender,  2  CI.  &  F.  L.  R.  3  P.  D.  1. 


HUSBAND   AND   WIFE.  231 

utors  to  disclose  confidential  communications  made  during  the 
marriage.^  Were  the  sole  ground  of  exclusion  "legal  identity  " 
there  would  be  no  reason  for  refusing  to  receive  the  wife's 
testimony  in  that  case.^  The  rule  does  not  apply  where  the 
marriage  turns  out  to  be  void,  even  though  it  may  have  been 
supposed  by  the  parties  to  be  valid.  ^  So  a  kept  mistress  may 
give  evidence  against  her  protector.* 

There  are  certain  special  cases  where  the  wife  may  give  testi- 
mony, as  where  the  husband  is  prosecuted  criminally  for  acts  of 
violence  against  her.  This  is  from  the  necessity  of  the  case,  as 
otherwise  the  crime  would,  in  general,  go  unpunished,  and  the 
wife  would  fail  of  protection.  There  are  also  cases  where  there 
is  a  secret  fact  in  which  her  testimony  is  allowable,  as,  for 
example,  where  an  action  is  brought  by  a  husband  against  a 
carrier  for  loss  of  baggage,  and  the  wife  having  packed  the 
trunk,  is  alone  acquainted  with  its  contents. 

Reference  must  also  be  made  to  declarations  made  by  a  wife 
out  of  court,  as  evidence  against  the  husband.  As  she  may  be 
his  agent  for  certain  purposes,  she  may  make  declarations  and 
admissions  out  of  court  in  connection  with  the  agency,  which 
will  be  as  binding  on  him  as  if  made  by  any  other  agent,  and 
which  can  be  proved  in  evidence  against  him.^  Declarations 
made  by  her  are  in  like  manner  in  a  proper  case  admissible  in 
his  favor.  *" 

So  in  actions  for  criminal  conversation  brought  by  the  husband, 
letters  written  by  her  to  him  and  others  prior  to  the  alleged 
illicit  intercourse  showing  the  state  of  her  feelings  towards  him 
are  admissible  in  his  behalf  if  there  is  no  reason  to  suspect 
collusion  between  them.^ 

Statutes  are  found  both  in  England  and  in  this  country  relax- 
ing these  rules.  It  is  now  the  law  in  England  that  either  hus- 
band or  wife  are  competent  and  compellable  to  give  evidence 
for  or  against  each  other  in  civil  actions,  except  that  neither 
of  the  parties  shall  be  required  to  disclose  commimications  made 
during  the  marriage  by  one  to  the  other.  This  rule  is  not  ex- 
tended to  criminal  proceedings,  nor,  except  with  modifications, 
to  a  proceeding  instituted  in  consequence  of  adultery.^ 

Under  the  existing  New  York  law,  a  husband  and  wife  are  not 

1  Doker  v.  Hasler,  Ryan  &  M.  198.  ^  Walton  v.  Green,  1  C.  &  P.  621. 

2  Beveridge  v.  Miiiter,  1  C.  &  P.  364.  ^  Willis  v.  Bernard,  8  Bing.  376  ;  Tre- 
8  Wells  V.  Fletcher,  5  C.  &  P.  12.              lawney  v.  Coleman,  1  B.  &  Aid.  90. 

*  Batthews  v.  Galindo,  4  Bing.  610.  8  i6  &  17  Vict.  c.  83,  modified  by  32  & 

5  Clifford   V.    Burton,     1     Bing.    199 ;     33  Id.  c.  68. 
M'George   v.   Egan,   5  Bing.  N.  C.    196  ; 
Meredith  v.  Footner,  11  M.  &  W.  202. 


232  THE    LAW   OF   PEKSONS. 

in  general  excluded  or  excused  from  giving  testimony  for  or 
against  each  other.  ^  There  are  the  following  exceptions :  neither 
of  them  is  competent  to  testify  against  the  other  in  the  trial  of 
an  action  or  the  hearing  upon  the  merits  of  a  special  proceeding 
founded  upon  an  allegation  of  adultery,  except  to  prove  the 
marriage  or  disprove  the  allegations  of  adultery ;  neither  party 
can  be  compelled,  or  without  the  consent  of  the  other  allowed, 
to  disclose  a  confidential  communication  made  during  the  mar- 
riage. In  an  action  for  criminal  conversation,  the  wife  is  not 
a  competent  witness  for  her  husband,  but  is  for  the  defendant, 
except  that  she  cannot,  without  the  husband's  consent,  disclose 
confidential  communications  had  with  her  husband. ^ 

Similar  provisions  are  now  quite  generally  adopted  in  the 
several  States,  for  the  details  of  which  the  statutes  of  the  States 
respectively  should  be  consulted. 

The  wife' 8  right  of  dower  in  the  husband'' s  real  estate.  —  This 
is  only  mentioned  here  for  the  sake  of  completeness,  as  the 
treatment  of  it  more  appropriately  belongs  to  a  work  upon  real 
estate.  Dower  at  common  law  is  a  right  given  to  a  wife  in  case 
she  survive  her  husband  to  have  an  estate  for  her  life  in  one 
third  of  all  the  land  in  which  he  was  seized  of  an  estate  of 
inheritance  at  any  time  during  the  marriage.  During  the  mar- 
riage it  is  but  an  inchoate  right;  after  the  husband's  death  it  is 
a  right  of  action  until  her  interest  is  assigned  or  set  apart  to 
her;  whereupon  it  becomes  an  estate  in  the  land.  There  are 
many  distinctions  on  this  subject,  making  it  an  important  and 
intricate  branch  of  real  property  law. 

1  Code  of  Civ.  Pro.  §  828;  Code  of  Crim.        2  Code  of  Civ.  Pro.  §  831. 
Pro.  §  392. 


CHAPTER  VI. 

PARENT   AND    CHILD. 

Children  from  a  legal  point  of  view  are  of  two  classes,  — 
legitimate  and  illegitimate.  Their  respective  rights  will  be  con- 
sidered under  these  two  divisions.  A  third  division  will  be 
devoted  to  adopted  children. 

DIVISION   I. —  Legitimate  Children. 

Legitimate  children  are  those  who  are  born  in  wedlock  or 
within  a  competent  time  afterwards.  The  legal  maxim  is,  "  He 
is  the  father  who  is  shown  to  be  such  by  the  marriage  "  (pater 
est  quern  nuptice  demonstranf).  It  is  not  necessary  to  legitimacy 
that  a  child  should  be  conceived  in  wedlock.  It  is  enough  that 
he  is  born  after  marriage,  the  fact  of  the  marriage  being  an  im- 
plied admission  by  the  husband  that  he  is  the  father. 

The  first  section  of  this  division  treats  of  the  duties  of  parents  ; 
the  second  of  their  power  and  authority ;  and  the  third  of  the 
relations  of  children  towards  parents. 

Section  I.       The  Duties  of  Parents  toivards  Children.  — 

I.  Maintenance.  —  The  duti/  here  intended  is  not  merely  a 
moral,  but  a  legal  duty.  There  is  a  marked  distinction  between 
this  case  and  that  of  husband  and  wife.  The  duty  of  the  husband 
to  maintain  his  wife  springs  out  of  contract,  upon  which,  it  is  true, 
the  law  grafts  certain  implied  obligations  ;  the  duty  of  the  father 
is  in  no  respect  derived  from  contract.  Whatever  legal  duty 
there  may  be,  seems  to  be  a  duty  towards  society,  —  a  duty  noti 
to  bring  a  child  into  the  world  so  as  to  make  him  a  burden  upon 
his  fellows.  Accordingly,  legislation  is  proper  which  compels  a 
parent  to  sustain  a  child,  makes  him  obnoxious  to  the  poor  laws 
in  case  he  does  not,  and  if  he  absconds,  sequesters  his  property. 

This  is  the  basis  of  the  English  statute  passed  in  the  reign  of 
Queen  Elizabeth.^  This  act  provided  a  mode  whereby  tlie  father 
and  grandfather,  the  mother  and  grandmother,  and  the  children  of 
poor  persons,  if  they  were  of  sufficient  pecuniary  ability,  should 

1  43Eliz.  c.  2,  §  7  (a.  D.  1601). 


234  THE   LAW   OF   PEESONS. 

maintain  their  poor  relatives  according  to  a  rate  fixed  by  the  jus- 
tices of  the  peace  of  the  county  where  they  lived,  under  the  pen- 
alty of  a  specified  forfeiture. 

This  is  the  basis  of  similar  legislation  in  this  country.  The 
New  York  statute  omits  the  mention  of  grandfather  and  grand- 
mother, thus  confining  the  statutory  duty  to  parents  and  chil- 
dren.    There  are  detailed  measures  for  enforcing  the  obligation. 

A  husband  is  by  general  rules  of  law  under  no  legal  duty  to 
maintain  the  children  of  his  wife  by  a  former  husband. i  («)  If 
he  takes  them  into  his  family  as  if  they  were  his  children,  he 
cannot  subsequently  compel  them  to  pay  for  past  support.^  Nor 
can  they  under  like  circumstances  claim  payment  for  any  services 
rendered  in  the  family.^  As  their  relation  depends  on  tacit  con- 
sent, either  party  may  break  it  off  at  any  time ;  whereupon  all 
further  obligation  is  terminated.  The  same  rule  applies  to  a 
widow  on  remarriage  as  to  the  children  of  a  former  husband.* 
This  rule  is  a  defect  in  the  law,  which  has  been  corrected  in 
England  by  statute.^  Eules  of  this  kind  have  a  local  effect,  and 
do  not  follow  the  parties  into  other  countries.  Thus  it  is  a  rule 
in  France  that  a  father-in-law  must  make  an  allowance  to  a  needy 
son-in-law  for  his  support.  This  is  a  statute  analogous  to  poor- 
law  legislation,  and  has  no  extra-territorial  effect.^ 

The  settled  English  opinion  is,  that,  independent  of  all  statutes, 
the  father  cannot  legally  be  compelled  to  sustain  his  children. 
The  test  of  his  liability  would  be  found  in  the  following  facts : 
The  father  refuses  to  sustain  his  child ;  the  latter  applies  to  a 
tradesman  to  supply  him  with  necessaries  in  the  same  general 
manner  that  a  wife  does  when  support  is  refused  by  a  husband. 
The  tradesman  then  sues  the  father.  Can  he  recover  ?  The 
answer  would  be  in  the  negative.  The  son  has  no  agency  in  such 
a  case  to  bind  the  father.'^ 

The  American  decisions  are  in  a  more  confused  condition,  some 
holding  with  the  English  authorities  and  others  maintaining  that 
a  child  not  supplied  with  necessaries  may  bind  the  father  by  con- 

1  Elliott  V.  Lewis,  3  Eilw.  Ch.  40;  Hill-  children  of  his  wife,  whether  legitimate  or 
man  v.  Stephens,  16  N.  Y.  278  ;  Cooper  illi>gitimate,  as  a  part  of  his  family,  until 
V.  JMartin,  4  East,  76.  they  attain  the   age    of   16,  or  until   the 

2  Sharp  V.  Cropsey,  11  Barb.  224.  wife's  death.     §  57. 

8  Williams  r.  Hutchinson,  5  Barb.  122;  ^  De  Brimont  v.  Penniman,  10  Blatch. 

3  N.  Y.  312.  436. 

*  Re  Besondy,  32  Minn.  385.  '^  Shelton  v.   Springett,  11  C.  B.  452; 

5  4  &  5  Wm.  IV.  c.  76.     The  husband  Mortimore  v.  Wright,  6  M.  &  W.  482. 
under  that  act  must  maintain  the  prior 


{a)  In  the  Matter  of  Ackerman,  116  N.  Y.  654  ;  Brown's  Appeal,  112  Pa.  St.  18. 


PARENT    AND    CHILD.  235 

tracting  with  tradesmen.^  Whatever  may  be  the  correct  rule  in 
principle,  it  is  well  settled  that  if  a  father  furnishes  a  child  rea- 
sonably with  necessaries,  the  tradesman  cannot  assume  to  supply 
him  and  recover.     He  is  bound  to  know  the  true  state  of  things.^ 

Slight  acts  on  the  part  of  the  father  recognizing  a  child's  agency 
will,  even  under  the  English  rule,  be  sufficient  to  bind  him.  Thus, 
where  a  father  had  seen  without  objection  his  son  (a  boy  at 
school)  wearing  a  suit  of  clothes  which  the  father  had  not  himself 
purchased  for  him,  it  was  held  to  be  a  question  for  a  jury  whether 
the  father  had  not  authorized  their  purchase.^  So  it  might  be 
fairly  claimed  if  a  father  had  sent  a  son  to  a  boarding-school  or 
college  that  he  had  thereby  tacitly  contracted  with  the  proper 
persons  to  pay  his  necessary  bills. 

Whatever  obligation  the  father  may  be  under  to  tradesmen 
and  others  on  refusal  to  pay  bills,  it  would  regularly  cease  on  the 
child's  attaining  the  age  of  twenty-one.  The  statute  of  Elizabeth 
and  cognate  legislation  would,  however,  be  still  applicable  in 
case  he  became  chargeable  to  the  public  under  the  poor  laws.* 
The  court  of  Chancery  has  no  direct  power  to  compel  a  parent 
to  support  a  minor  child.°  The  court,  however,  in  the  exercise 
of  its  general  authority  over  infants  and  their  estates  may  grant 
an  allowance  to  a  father  for  the  support  of  the  child  from  the 
income  of  property  belonging  to  the  child,  and  may  in  a  proper 
case  encroach  upon  the  principal.  It  is  not  necessary  that  the 
fund  should  have  been  transferred  to  the  child  with  a  view  to  his 
support  during  infancy ;  it  is  enough  that  the  fund  belongs  to 
him.^  Some  decisions  maintain  that  such  an  allowance  will  not 
be  made  if  the  father  is  of  sufficient  pecuniary  ability  to  supply 
the  necessary  support.^     Other  cases  adopt  the  more  reasonable 

1  Cases  following  the  English  view  are  New  York  Code  of  Criminal  Procedure, 
Raymond  y.  Loyl,  10  Barb.  483;  White  u.  and  are  subject  to  the  proceedings  pro- 
Mann,    110  Ind.    74  ;  Gotts  v.  Clark,  78     vided  for  in  §§  899-913. 

111.  229  ;  McMillen  v.  Lee,  Id.  443  ;  Free-  ^  Matter  of  Ryder,  11  Paige,  185.     In 

man  v.  Robinson,  38  N.  J.  Law  R.   383  ;  this  case  there  was  a  petition  to  the  court 

Kelley  V.  Davis,  49  N.  H.  187  ;  Gordon  v.  on  the  part  of  a  young  man  of  20,  and  in 

Potter,  17  Vt.  348;  contra,  Clark  v.  Clark,  perfect  health,  for  an  order  directing  his 

46    Conn.    586  ;    Stovall  v.   Johnson,    17  mother  to  supply  him  with  means  to  ob- 

Ala.  14  ;  Dennis  v.  Clark,  2  Gush.  347  ;  tain  a  professional  education.     The  order 

Gilley  v.   Gilley,   79  Me.  292  ;  Porter  v.  was  refused. 

Powell,  79  Iowa,  151.  ^  Stretch  v.  Watkins,    1   Mad.    253  ; 

2  Van    Valkinburgh    v.    Watson,     13  Adams  on  Equity,  287. 

Johns.  480.  ^  Addison   v.   Bowie,   2  Bland  (Md.), 

8  Law  V.   Wilkin,    6    Ad.  &  El.   718  ;  606,  619  ;  Tompkins  v.  Tompkins'  Ex'rs, 

Jordan  v.  Wright,  45  Ark.  237.  18  N.  J.  Eq.  303  ;  ilyers  v.  Myers,  2  Mc- 

*  Parents  neglecting  to  provide  for  their  Cord  (S.  C),  Ch.  214  ;  Dawes  v.  Howard, 

children  according  to  their  means  are  de-  4  JIass.  97  ;  Newport  v.  Cook,  2  Ashmead 

clared  to  be  "disorderly  persons"  in  the  (Pa.)  332. 


236  THE   LAW   OF   PERSONS. 

rule  that  the  question  is  a  relative  one,  and  that  due  regard  must 
be  had  to  the  relative  wealth  of  the  parent  and  child,  and  the 
claims  of  others  upon  the  father's  estate.^  There  may,  for  ex- 
ample, be  claims  upon  a  father  of  a  second  family  of  children, 
which  should  properly  be  taken  into  account.^ 

It  was  at  one  time  held  that  the  allowances  could  be  only  proa- 
pcctive.3  It  is  the  usual  practice  to  make  them  so.  Still  there 
is  no  rule  that  they  shall  not  be  retrospective.  It  is  now  held, 
that  if  a  special  case  be  proved,  the  court  may  direct  an  inquiry 
as  to  the  propriety  of  allowing  for  past  maintenance,  and  if  the 
facts  warrant  it,  the  order  will  be  made.*  The  charge  may  be 
made  upon  reversionary  as  well  as  present  interests,  and  a  plan 
is  adopted  in  the  English  courts  under  which  a  life  insurance 
policy  may  protect  the  interests  of  others  in  case  the  infant's 
interest  should  fail  to  vest.  If  trustees  holding  a  fund  for  the 
maintenance  of  infants  have  power  by  the  trust  deed  to  pay  the 
income  to  the  father,  the  court  will  not  in  general  interfere  with 
their  discretion,^  If,  however,  they  act  without  the  exercise  of 
sound  judgment,  or  improvidently,  the  court  may  interfere.^ 

But  the  court  has  gone  so  far  in  the  exercise  of  its  general 
powers  as  not  only  to  appropriate  the  income,  but  even  to  break 
in  upon  the  principal.  This  result  was  first  reached  in  1873  in 
Howarth's  case.''  (a) 

The  question  has  been  raised  whether  an  allowance  can  be 
made  for  the  children  from   the  mother's  separate  estate  wliile 

1  Matter  of  Burke,  4  Sandf.  Ch.  617.  145,  §  26),   the  court  may  make  an  al- 

2  Matter  of  Kane,  2  Barb.  Ch.  375.  lowance,  in  certain  cases,  for  an  infant's 

3  Andrews  v.  Partington,  2  Cox  Eq.  maintenance  from  a  fund  held  in  trust 
Cases,  223.  upon  a  contingency,  such  as  the   attain- 

*  Ex  parte  Bond,  2  M.  &  K.  439  ;  Mat-  ment  of  the  age  of  twenty-one  years.    This 

ter  of  Kane,  2  Barb.  Ch.  375,  380,  381.  act  is  held  only  to  be  applicable  when  the 

5  Brophy  v.  Bellamy,  L.  R.  8  Ch.  798.  infant  is   entitled   to    both    income   and 

^  Davey  v.  Ward,  L.  R.  7  Ch.  D.  754  ;  principal   on   the   happening  of  the  pre- 

In  re  Roper's  Trusts,  L.  R.  11  Ch.  D.  272.  scribed  event.     In  re  Judkin's  Trusts,  L. 

By  the  Conveyancing  Act  of  1881  (44  &  R.  25  Ch.  D.  743. 

45  Vict.  c.  41,  §  43),  which,  together  with  ^  In  re  Howarth,  L.  R.  8  Ch.  415. 
the  Conveyancing  Act  of  1882  (45  &  46  Opinion  of  Little,  V.  C,  note  to  page  416. 
Vict.  c.  38,  §  64),  repealed  the  previous  This  case  is  doubted  in  Cadman  v.  Cad- 
act  upon  the   subject  (23  &  24  Vict.  c.  man,  L.  R.  33  Ch.  D.  397. 


(a)  In  New  York  it  is  provided  that  rents  and  profits  to  be  applied  to  his  main- 

where  rents  and  profits  of  real  estate  are  tenance  and  education.     1  R.  S.  726,  §  39, 

directed  to  be  accumulated  for  the  benefit  as  amended  by  Laws  of  1891,  ch.  172.     A 

of  an  infant  entitled  to  an  expectant  estate,  like  provision  exists  as  to  an  accumulation 

and  the  infant  is  destitute  of  other  means  of  the  income  of  personal  property.     1  R. 

of  support  and   education,    the   Supreme  S.  774,  §  5,  as  amended  by  Laws  of  1891, 

Court,  or   in   certain  cases  a  Surrogate's  ch.  173. 
Court,  may  direct  a  suitable  sum  out  of  the 


PARENT   AND   CHILD.  237 

the  father  is  living.  In  general  it  would  not  be,  as  it  is  the 
father's  duty  to  support  them.i  When  the  mother  is  a  widow 
having  property,  no  substantial  reason  can  be  found,  why  a  dis- 
tinction should  be  made  between  her  case  and  that  of  the  father, 
and  the  same  general  rights  should  be  conceded  to  her  as  to 
allowances  from  the  child's  estate.^ 

II.  Protection.  —  The  father  is  not  so  much  under  a  legal  duty 
as  he  is  invested  with  a  right,  to  protect  his  child.  He  may  aid 
him  in  litigation  and  not  be  guilty  of  maintenance.  So  if  a  child 
be  assaulted  by  another  person,  the  father  may  protect  him  to 
the  fullest  extent,  proceeding,  if  necessary,  so  far  as  to  take  the 
life  of  the  assailant. 

Modern  statutes  provide  not  only  for  the  protection  of  children 
from  the  acts  of  third  persons,  but  also  against  the  wrongs  of  the 
parents  themselves,  or  of  those  in  whose  custody  the  children 
may  have  been  placed  by  the  parents.^  Reference  should  be 
made  to  the  so-called  "  Factory  Acts  "  in  England  and  in  some 
of  the  American  States,  prohibiting  the  labor  of  children  in  cer- 
tain employments,  and  in  others  regulating  the  hours  and  places 
of  labor.^  (a) 

III.  Education.  —  This  so-called  "  duty  "  is  for  the  most  part 
one  of  imperfect  obligation.  Under  the  public  school  systems  of 
many  of  the  American  States  a  full  opportunity  is  given  to  all 
children  to  obtain  an  elementary  education.  To  do  so  is  not, 
however,  usually  made  compulsory.  The  amount  and  kind  of 
education  is  for  the  most  part  left  to  the  choice  and  even  to 
the  caprice  of  the  parents.  Some  of  the  States  have  introduced 
a  compulsory  element  into  their  systems  of  education,  particu- 
larly in  the  case  of  the  indigent  classes  or  of  truant  and  idle 
children.  The  statutes  of  the  respective  States  should  be  con- 
sulted for  details.  The  extent  of  compulsory  education  in  New 
York  is  stated  in  a  note.^ 

1  Hodgens  v.  Hodgens,  4  CI.  &  F.  323.     statutes   down   to   41   &   42   Vict.  c.    16 

2  MatterofBostwick,  4  Johns.  Ch.  100.     (1878). 

»  See  New  York  Penal  Code,  §§  237-  »  aU  children  between  the  ages  of  eight 

293.      There   is   legislation   of  a   similar  and  fourteen  are  required  to  attend  school 

nature  in  other  States.     See  also,  in  Eng-  for  fourteen  weeks  each  year,  —  eight  of 

land,  35  &  36  Vict.  c.  38,  as  to  the  pro-  which  shall  be  consecutive,  —  or  to  be  in- 

tection  of  infants  intrusted  to  persons  to  structed  regularly  at  home  in  certain  speci- 

be  nursed  or  maintained.  fied  branches  of  study.       There  are  pro- 

*  See  the  Factory  Act  of  1833,  3  &  4  visions  authorizing  trustees  of  schools  or 

Wm.  IV.  c.  103,  and  many  amendatory  boards  of  education  to  see  that  the  com- 


(a)  See  also  54  &  55  Vict.  c.  75,  and  1889,  ch.  '560  ;  Laws  of  1890,  ch.  398  ; 
as  to  the  law  in  New  York,  Vol.  IV.  Rev.  Laws  of  1892,  ch.  673  ;  and  Laws  of 
Stats.  8th   ed.  pp.  2620-2623;   Laws   of    1893,  ch.  173. 


238  THE   LAW   OF   PERSONS. 

These  propositions,  in  a  general  way,  sum  up  the  common-law 
duties  and  obligations  of  the  father.  He  is  not  bound  to  leave 
liis  estate  to  his  child  either  by  will  or  by  the  laws  of  succes- 
sion. He  may  convey  it  away,  if  so  disposed,  or  may  devise  or 
bequeath  it  by  his  will  to  strangers.  So  if  he  have  several 
children,  he  may  bestow  all  his  property  upon  one  or  more,  leav- 
ing the  others  destitute.  There  is  a  marked  difference  between 
these  rules  and  those  which  prevail  under  the  Roman  law,  which 
makes  a  child  a  necessary  successor  to  a  portion  of  the  father's 
estate  on  his  death.  ^  This  rule  prevails  in  the  State  of 
Louisiana. 

There  are  also  States  where  a  special  statutory  rule  may 
interfere  with  the  perfect  liberty  of  testamentary  disposal.  A 
marked  instance  is  found  in  the  New  York  law  in  respect  to  a 
devise  or  bequest  to  a  charitable  organization  or  association. ^ 
This,  in  substance,  prohibits  a  husband,  wife,  parent,  or  child 
from  giving  by  will  more  than  one  half  of  his  or  her  property  to 
such  an  association  where  either  husband,  wife,  parent,  or  child 
may  survive.  If  the  testator  gives  his  estate  to  a  number  of  chari- 
table societies,  they  can  only  take  in  the  aggregate  one  half  of 
his  estate.^  This  statute  does  not  affect  a  bequest  made  in 
another  State  of  the  Union  to  a  charitable  society  domiciled 
in  New  York.*  In  determining  the  point  whether  one-half  of 
the  testator's  estate  has  been  devised,  etc.,  it  must  be  treated  as 
if  converted  into  money  at  his  death,  and  the  money  value 
ascertained.  It  may  be  that  it  consists  in  part  or  wholly  of  life 
interests.  The  value  of  these  may  be  ascertained  from  the 
recognized  annuity  tables.^  The  widow's  right  of  dower  must 
be  deducted  in  case  of  a  husband's  will,  as  that  does  not  belong 
to  the  husband.^    The  amount  of  his  debts  must  also  be  deducted. 

Liahilily  for  torts  of  the  cJiild.  A  father  is  not  liable  for  the 
wilful  torts  of  his  minor  child  committed  without  his  direction 
or  consent.  A  well-known  illustration  is  the  case  where  the 
child  wilfully  set  a  dog  upon  another's  person  or  property  to 
his  injury.'' 

pulsory  sections  of  the  act  are  carried  into  Abb.   N.  C.  274  ;  Chamberlain  v.  Cham- 

efiect.     It  is  generally  conceded  that  the  berlain,  43  N.  Y.  424. 

provisions   of  this  act   are  of  but  little  *  Crum  v.  Bliss,  47  Conn.  592. 

practical  effect.     A  well-devised  law  upon  &  Hollis  v.  Drew  Theol.  Seminary,  95 

this  subject  is  greatly   needed.    Laws  of  N.  Y.  166. 

1874,  ch.  421,  as  amended  by  Laws   of         6  Chamberlain  v.  Chamberlain,  43  N. 

1876,  ch.  372  Y.  424,  440. 

1  Mackeldey's  Roman  Law  (Dropsie's  ^  Tifft  v.  Tifft,  4  Denio,  175  ;  Schloss- 
Ed.),  §  706  (1883).  berg  v.  Lahr,  60  How.  Pr.  450  ;  Wilson  v. 

2  Laws  of  1860,  ch.  360.  Garrard,  59  III  51  ;  Paulin  v.  Howser,  63 
*  Kearney   v.    Missionary  Society,    10     m.  312. 


PAEENT   AND   CHILD.  239 

Duty  of  a  mother  to  maintain  her  minor  children.  This  case 
is  considered  separately  from  that  of  the  father,  as  the  law 
is  not  clear.  What  is  referred  to  is  the  duty  of  a  mother, 
who  is  a  widow,  to  maintain  her  minor  children.  Upon  this 
point  there  is  a  great  conflict  of  opinion  in  the  cases.  They 
are  extensively  collated  in  the  opinions  (prevailing  and  dissent- 
ing) in  the  case  in  the  Supreme  Court  of  New  York  cited  in  the 
note.^  The  result  there  arrived  at  was  that  the  mother  was 
liable.  This  view  was  adopted  by  the  Court  of  Appeals  in  a 
later  decision. ^  The  argument  depended  largely  on  the  propo- 
sition that  the  widowed  mother  was  entitled  to  the  services 
of  the  minor  child,  and  was  under  a  corresponding  duty  of 
maintenance. 

A  father  does  not  escape  liability  for  the  support  of  his  chil- 
dren by  permitting  them  to  remain  with  the  mother  after  a 
divorce.^  Still,  the  better  opinion  is,  that  he  is  not  liable  if 
the  custody  of  the  child  has  been  given  to  the  mother  by  a  decree 
of  the  Supreme  Court  of  the  State.*  In  the  case  cited,  there  was 
a  decree  for  divorce,  and  an  order  taking  the  care  and  custody 
of  the  child  from  the  husband  and  giving  it  to  the  wife.  The 
court  said  ^  that  with  these  decrees  in  force,  the  husband  had  no 
right  to  take  the  child,  and  to  support  it  or  to  employ  any  one 
else  to  support  it  without  the  mother's  consent,  and  that  no 
contract  by  the  husband  in  favor  of  the  plaintiff  (who  had  fur- 
nished necessaries  to  the  child)  could  be  implied.^  (a) 

Section  II.  The  Power  or  Authority  of  Parents  over  Children. 
—  These  may  be  classified  under  three  heads :  I.  The  right  of 
custody;  II.  The  right  of  discipline  and  training;  III.  The 
right  to  the  services  of  a  minor  child. 

I.     The   right   of  custody.  —  By  this   is   meant  the    right    of 

1  Gray  v.  Dnrland,  50  Barb.  100.  The  opposite  view,  but  this  was  not  followpil 
dissenting  opinion  is  on  page  211.  in    Finch   v.  Finch,  22   Conn.  411,  which 

2  Furinan  v.  Van  Sise,  56  N.  Y.  435.  agrees  with  Brow  v.  Brightman,  supra. 
See  Girls'  Industrial  Home  v.  Fritchey,  10  The  Supreme  Court  of  Ohio  in  Pretzinger 
Mo.  App.  344.  V.    Pretzinger,   45  Ohio    St.   452,    follows 

3  Courtright  v.  Courtright,  40  Mich.  Stanton  v.  Willson  ;  while  the  English 
633.  Court  of  Queen's  Bench  holds  the  husband 

*  Brow  V.  Brightman,  136  Mass.  187.  still  liable  in  the  case  of  a  voluntary  sepa-^ 

5  Id.  p.  189.  ration  and  a  judicial  order  authorized  by 

^  This  is  a  much-mooted  question.    The  statute,  giving  the  mother  the  custody  of 

case  in  Massachusetts  seems  correct,  par-  a  child.     Bazeley  v.  Forder,  L.  R.  3  Q.  B. 

ticularly  if  there  be  an  absolute  divorce.  559. 

Stanton  v.  Willson,  3  Day,  37,  holds  the 


(a)  Where  no  provision  is  made  in  the  mother  against  the  father  for  its  support, 
decree  of  divorce  for  the  custody  of  the  Gilley  v.  Gilley,  79  Me.  292.  But  see 
child,  an  action  may  be  maintained  by  the    Ramsey  v.  Kamsej',  121  Ind.  215. 


240  THE   LAW   OF   PERSONS. 

control  and  possession  of  the  child's  person.  When  the  child 
is  of  tender  years,  the  law  wisely  (except  in  cases  of  abuse) 
concedes  the  exclusive  possession  of  the  child  to  one  or  the 
other  of  the  parents  instead  of  strangers.  After  it  reaches  riper 
years,  the  wish  of  the  child  itself  may  be  consulted  by  the  court 
in  determining  the  question  of  custody.  Still,  there  must,  in 
the  last  resort,  be  a  determining  authority  vested  in  the  State 
as  sovereign  to  limit  the  parent's  power  when  not  exercised  for 
the  child's  welfare,  and  perhaps  even  to  take  away  his  control 
altogether.  There  are  thus  regularly  two  classes  of  questions 
to  be  considered  judicially :  one,  what  is  the  right  of  a  parent  to 
custody  when  no  special  element  of  the  child's  welfare  is  pre- 
sented; the  other,  what  is  the  right  when  the  question  of  the 
child's  own  welfare  is  involved.  The  first  of  these  questions  can 
be  fairly  presented  upon  a  writ  of  habeas  corpus ;  the  other  can 
be  more  broadly  and  fully  considered  by  a  court  of  equity. 

Custody  under  the  writ  of  habeas  corpus.  The  great  use 
and  object  of  this  writ  is  to  relieve  a  person  from  unlawful 
restraint.  When  applied  to  the  case  of  an  infant  or  other  per- 
son not  sui  juris,^  the  legal  theory  is  that  he  is  under  unlaivful 
restraint  when  he  is  not  allowed  to  be  in  the  custody  of  the  per- 
son legally  entitled  to  it.  It  is  the  function  of  the  writ  to 
remove  him  from  improper  custody,  and  to  place  him  in  the  care 
of  the  one  designated  by  law  to  have  charge  of  him.  This  rule 
will,  in  general,  be  applied  where  the  child  is  too  young  to 
determine  for  himself  in  what  custody  he  should  be.  The  age 
at  which  he  would  have  the  power  of  self-determination  is  arbi- 
trarily fixed  at  fourteen  in  the  case  of  males.  ^  If  under  that 
age,  the  judge  or  court  acts  for  him ;  if  beyond  that  age,  after 
setting  the  child  free  to  act,  it  allows  him  to  go  where  he 
pleases. 

A  brief  account  of  the  historical  development  of  this  rule  may 
be  useful.  The  earliest  case  is  said  to  be  Rex  v.  Johnson.^  The 
child  was  nine  years  of  age.  The  court  at  first  thought  that  it 
could  only  see  if  the  child  was  under  restraint.  It  was  finally 
held  that  as  the  child  was  young,  and  had  no  judgment  of  her 
own,  she  should  be  delivered  to  the  guardian,  who  took  posses- 
sion of  her  in  court.  It  is  stated  in  Rex  v.  Smith, ^  that  the 
court  subsequently  "  repented  "  of  this  decision.     When  this  was 

1  The  expression  "  sui  juris  "  refers  to  the  custody  of  a  daughter  until  she  is  six- 

the  capacity  of  a  person  to  act  forliiniself  ;  tee7i.     Reg.  v.  Howes,  7  Jur.  N.  s.  22. 
when  that  capacity  is  wanting,  he  is  said  ^  1  Strange,  579. 

to  be  "  not  sui  juris."  *  2  Id.  982  (7  Geo.  II.). 

2    It  is  however  held  that  the  father  has 


PAKENT    AND    CHILD.  241 

mentioned  in  a  later  case  to  Lord  Mansfield,  he  remarked  that 
the  decision  was  right.  •  The  King  v.  De  Manneville  ^  is  a  later 
and  decisive  case.  The  father  and  mother  were  not  on  friendly 
terms ;  the  former  having  obtained  possession  of  the  child  (then 
eight  months  old)  by  stratagem,  the  court  refused  to  take  it  from 
him  on  the  application  of  the  mother.  There  was  no  claim 
that  it  was  sustaining  injury  for  want  of  maternal  nurture. 
This  case  was  followed  by  one  where  the  facts  were  still  more 
unfavorable  to  the  father.^  He  lived  with  a  mistress  in  adultery, 
though  he  did  not  brine/  her  in  contact  with  the  children.  It 
was  decided  that  as  there  was  no  cruelty  nor  corruption  shown, 
the  court  would  not  deprive  the  father  of  his  natural  guardian- 
ship. The  rule  is  stated  in  this  case  clearly  by  Coleridge,  J., 
to  this  effect.  When  the  child  is  too  young  to  make  a  choice, 
the  court  refers  to  legal  principles  to  see  who  is  entitled  to  the 
custody,  because  the  law  presumes  that  where  the  legal  custody 
is,  no  restraint  exists.  The  presumption  is  in  favor  of  the  father; 
if  cruelty  or  corruption  is  shown,  or  reasonably  to  be  appre- 
hended, a  counter-presumption  arises.  In  the  case  of  Uz  parte 
Skinner,*  the  child  was  of  the  age  of  six;  the  husband  treated 
the  wife  with  cruelty,  living  with  an  adulteress.  These  facts 
were  held  to  be  not  sufficient  to  deprive  the  father  of  the  child's 
custody  bi/  means  of  the  ivrit  of  habeas  corpus.  In  fact,  the  court 
interferes  by  the  writ  only  in  cases  of  very  gross  misconduct,^ 
even  if  at  all.^  If  immorality  is  a  ground,  it  must  be  such  that 
the  morals  of  the  child  are  seriously  endangered.  The  great  dif- 
ficulty of  the  question  is  shown  in  Ex  parte  Skinner.^  When 
the  father  is  dead,  the  mother  is  the  guardian  by  nurture,  and 
similar  principles  will  be  applied  in  her  case.^ 

The  difficulties  and  perplexities  attending  this  subject  have 
led,  in  England,  to  an  act  of  Parliament  which  provides  that  in 
questions  relating  to  the  custody  and  education  of  infants,  the 
rules  of  equity  shall  prevail.^  Since  this  act,  the  courts  of  law 
exercise  concurrent  jurisdiction  with  the  courts  of  equity  over 
the  custody  of  infants,  but  apply  the  rules  of  equity.  ^^ 

The  common-law  rules  as  to  the  function  of  the  writ  of  habeas 

1  Rex  V.  Delaval,  3  Burrow,  1436.  stances  to  deprive  a  father  of  the  right  of 

2  5  East,  221.  custody. 

3  Rex  V.  Greenhill,  4  Ad.  &  EI.  624.  ^  9  J.  B.  Moore,  278. 

*  9  J.  B.  Moore,  278.  8  Rp^.  v.  Clarke,  7  El.  &  B.  186. 

5  /?i  re  Pu]  brook,  llJur.  185.  ^  36  &  37  Vict.  c.  66,  §25(10).  Compare 

^  There  is  a  «?(ci!(im  in  the  case  of  7re  re     with   this  the    "Infants'    Custody   Act" 
Hakewill,  12   C.    B.  223,  that  a  court  of    (1873) ;  36  &  37  Vict.  c.  12,  §  1. 
law  has  no  jurisdiction  under  any  circum-        ^'^  Re  Goldsworthy,  L.  R.  2  Q.  B.  Div. 

75. 
16 


242  THE   LAW   OF   PERSONS. 

corpus  in  this  class  of  cases  have  frequently  been  asserted  in  the 
New  York  courts  J  {a) 

The  Revised  Statutes  ^  provide  that  if  the  parties  live  in  a 
state  of  separation  without  being  divorced,  the  mother  may  apply 
to  the  Supreme  Court  for  the  custody  of  the  child  by  writ  of 
habeas  corpus.  This  gives  the  court  a  new  power  over  the  custody 
of  the  children.^  The  separation  provided  for  in  the  statute  is 
by  mutual  consent^  and  does  not  include  the  case  where  the  wife 
lives  apart  from  the  husband  by  her  own  act,  and  without  good 
cause,-*  Proceedings  under  this  statute  must  be  had  before  the 
court  as  such,  and  not  merely  before  a  judge  out  of  court.  ^ 

A  final  remark  upon  this  branch  of  the  subject  is,  that  where 
a  child  is  of  sufficient  age  to  choose  for  itself,  the  court  will 
simply  set  it  free  from  restraint,  so  that  it  may  go  where  it 
will.   It  will  not  be  remanded  to  the  custody  of  its  parent.^ 

Power  of  a  court  of  equity.  The  authority  of  a  court  of 
equity  as  to  the  custody  of  childien  rests  on  a  wholly  different 
basis.  It  was  the  theory  of  the  English  law  that  the  king,  as 
parens  patrice,  had  the  care  of  those  who  are  not  able  to  take 
care  of  themselves,  particularly  in  cases  where  it  is  clear  that 
some  protection  should  be  thrown  around  them.  The  right  of 
the  father,  viewed  from  this  standpoint,  is  not  personal,  hut 
derived  from  the  State.  It  is  not  so  much  a  power  as  a  truU. 
In  that  aspect,  it  is  expected  that  he  will  properly  take  care 
of  and  rear  his  child  with  due  regard  to  his  education  and  train- 
ing in  letters,  morals,  and  religion.  When  this  trust  is  grossly 
violated,  the  court  will  interfere,  and  appoint  a  person  in  the 
place  of  the  father  to  take  charge  of  the  child,  and  superintend 
its  education,  etc.  The  possession  of  property  is  not  essential 
to  the  exercise  of  this  jurisdiction,  though  the  lack  of  it  may 
create  some  practical  difficulty.''  Wellesley  v.  Beaufort  (cited 
in  the  note)  was  a  thoroughly  considered  case.  The  husband 
brought  an  adulteress  into  the  family,  and  trained  his  children 
in  immoral  practices.  The  children  were  removed  from  his  cus- 
tody. The  same  rule  has  been  applied  where  the  father's  conduct 
is  professedly  grounded  upon  irreligious  and  immoral  principles.^ 

1  People  V.  Chegaray,  18  "Wend.  637;  5  People  v.  Humphreys,  24  Barb.  521. 
People  V.  Wilcox,  22  Barb.  178  ;  Wilcox  6  People  v.  Cooper,  1  Duer,  709. 

V.  Wilcox,  14  N.  Y.  575.  ^  Johnstone  v.  Beattie,  10  CI.  &  F.  42  ; 

2  2  R.  S.  148,  149.  De  Manneville  v.  De  Manneville,  10  Ves. 
8  People  V.  Chegaray,  18  Wend.  637  ;     52  ;  Wellesley  r.  Beaufort,  2  Russell,  1,  20; 

People  V.  Mercein,  8  Paige,  47.  s.  c.  2  Bligh,  N.  s.  124  ;  1  Dow  &  Clark,  152. 

*  People  V.  Olmstead,  27  Barb.  9.  8  Shelley  v.  Westbrooke,  Jacob,  266,  n. 

(a)  People  v.  Walts,  122  N.  Y.  238 ;  In  the  Matter  of  Feeney,  30  N.  Y.  St.  R.  382. 


PARENT   AND   CHILD.  243 

A  similar  rule  was  applied  under  tlie  special  circumstances  of  the 
case  where  a  husband  deserted  his  wife,  and  joined  a  religious 
sect  with  peculiar  doctrines,  the  members  of  which  lived  by  them- 
selves (the  "  Agapemone  ").  ^ 

Still,  the  court  has  no  power  to  deprive  the  father  of  the 
custody  of  the  child  merely  because  it  is  for  the  latter 's  benefit,'-^ 
nor  merely  on  the  ground  of  his  peculiar  religious  opinions, 
nor  on  account  of  poverty,  passionate  temper,  or  harshness  in 
conduct.  It  is  not  enough  that  removal  from  the  father  w^ould 
be  better  for  the  children,  but  it  must  appear  to  be  essential  to 
their  safety  and  welfare.^  (a)  The  jurisdiction  is  not  confined  to 
residents,  but  extends  to  citizen  parents,  though  the  children 
may  be  born  and  reside  abroad.^ 

These  principles  are  now  much  modified  in  England  by  the 
Infants'  Custody  Act,  taking  effect  April  24,  1873.  The  object 
of  the  act  is  to  vest  the  court  with  a  discretionary  power,  which 
it  does  not  possess  by  its  inherent  jurisdiction,  to  interfere  with 
the  common-law  right  of  the  father  to  custody,  when  children  are 
not  more  than  sixteen  years  of  age,  and  to  place  them  in  the 
control  and  custody  of  the  mother.  ^  {h)  The  "  Besant  "  case,  cited 
in  the  note,  is  instructive  as  showing  the  grounds  on  which  the 
court  will  now  exercise  its  discretion. 

A  father  cannot,  by  the  rules  of  the  court,  make  a  valid  con- 
tract to  renounce  the  custody  of  his  children.  This  rule  is 
derived  from  the  fact  that  his  control  and  custody  are  in  the 
nature  of  a  trust.  Such  an  agreement  is  contrary  to  public 
policy.^  ((?)  This  principle  would  not  affect  the  right  of  the  court 
to  hold  that  he,  by  his  voluntary  act,  had  abandoned  the  care  of 
the  child,  or  to  give  force  to  his  consent  when  his  conduct  had 
been  so  grossly  objectionable  as  to  justify  the  court  in  taking 
the  child  away  from  him.'  So  he  may  have  permitted  the  child 
to  be  brought  up  by  a  wealthy  relative,  and  to  have  acquired 
just  expectations  of  obtaining  future  benefits  from  such  rela- 

1  Thomas  v.  Roberts,  3  De  G.  &  S.  11  Ch.  Div.  508  ;  In  re  Holt,  L.  R.  16  Cb. 
758.  Div.  115. 

2  Curtis  V.  Curtis,  5  Jur.  n.  s.  1147.  «  In  re  Andrews,  L.  R.  8  Q.  B.  153  ; 
8  In  re  Fynn,  2  De  G.  &  S.  457.  Swift  v.  Swift,  34  Beav.  266  ;  s.  c.  34  L. 
*  Hope  V.  Hope,  4  De  G.  M.  &  G.  328.  J.  Ch.  209  ;  People  v.  Mercein,  3  Hill,  399. 
6  36    &   37   Vict.   c.    12.     Some   cases  '  Swift  v.  Swift  (on  appeal),   34  L.  J. 

arising  under  this  statute  are  :  7?i  re  Taylor,  Ch.  394;  Andrews  v.  Salt,  L.  R.  8  Ch. 
L.  R.  4  Ch.  Div.  157  ;  In  re  Besant,  L.  R.     622. 


{a)  See  Richards  v.  Collins,  45  N.  J.  (c)  Washaw  v.  GimHe,  50  Ark.  351; 


JSil.  283. 

(6)  In  re  Elderton,  L.  R.  25  Ch.  Div. 
220, 


Brooke  v.  Logan,  112  Ind.  183. 


244  THE   LAW   OF   PERSONS. 

tivc.  The  court  in  such  a  case  does  not  think  it  right  that  the 
father  should  arbitrarily  interfere,  and  disappoint  the  expecta- 
tions which  have  been  raised.  ^  But  a  court  will  not  deprive  the 
father  of  his  right  because  some  stranger  has  conferred  a  bene- 
fit, such  as  an  estate,  upon  the  child,  upon  condition  that  the 
guardianship  shall  be  relinquished. ^  The  result  in  such  a 
case  would  be  that  if  the  husband  did  not  renounce  the  guar- 
dianship vested  in  him  by  law,  the  estate  would  not  vest  in  the 
child.     Such  a  condition  will  be  interpreted  strictly. 

One  of  the  results  of  the  right  of  custody  is,  that  the  father 
may,  in  general,  remove  the  child  beyond  the  jurisdiction  of  the 
court.  2  Still,  the  right  of  removal  beyond  the  State  may  turn 
upon  the  point  whether  the  infant  has  been  made,  through  judi- 
cial proceedings,  a  "ward  of  the  Court  of  Chancery."  In  such  a 
case  the  English  decisions  do  not  permit  a  removal  with  a  view 
to  permanently  residing  abroad,  except  in  cases  of  imperative 
necessity,  as,  for  example,  whore  a  constant  residence  in  a 
warmer  climate  is  essential  to  health.*  (a)  In  such  cases  a  plan 
for  the  infant's  education  is  usually  sanctioned  by  the  court. ^ 
Where  such  wards  are  taken  abroad  temporarily,  security  that 
they  will  be  brought  back  may  be  required. ^  The  clandestine 
removal  of  such  a  ward  may  amount  to  a  criminal  contempt  of 
court.  Persons  are  sometimes  made  "  wards  of  court "  with  a 
view  of  applying  these  principles  to  their  cases. '^  In  the  case 
cited  in  the  note,  a  father  having  six  sons,  and  being  about  to 
emigrate  to  Canada,  was  restrained  on  special  grounds  from 
taking  with  him  one  son,  but  allowed  to  take  the  rest.  The 
court  will  not  compel  an  infant  ward  to  be  taken  out  of  the 
country.*^  In  the  case  cited  the  child  was  an  orphan,  and  both 
a  British  subject  and  an  American  citizen. 

II.  The  right  of  discipline  and  training.  —  This  topic  is  closely 
allied  to  the  right  of  custody.  The  father  could  not  fully  dis- 
charge his  trust  obligations  without  this  accompanying  right. 
One  of  the  results  is  that  he  may,  to  a  reasonable  extent,  ad- 
minister corporal  punishment  to  a  minor  child.       The  power 

1  Hill  V.  Gomme,  1  Beav.  540  ;  s.  c.  5  *  Campbell  v.  Mackay,  2  M.  &  C.  31  ; 
M.  &  C.  250.                                                     Wyndham  v.  Ennismore,  1  Keen,  467. 

2  Vanartsdalen  r.  Vanartsdalen,  14  Pa.  ^  ij. 

St.  384.  6  Biggs  V.  Terry,  1  M.  &  C.  675 ;  Re 

3  Wood  V.  Wood,  5  Paige,  596.  The  Medley,  6  Jr.  R.  Eq.  339  —  where  a  form 
father  will  not  be  restrained  in  such  a  re-     of  security  may  be  found. 

moval  except  in  a  clear  case  of  abuse  of  his  ''  Vidler  v.  Collyer,  47  L.  T.  283. 

authority,  when  he  will  be  enjoined  from  «  Dawson  v.  Jay,  3  De  G.  M.  &  G.  764. 

removins  him. 


(a)  But  see  Elliott  v.  Lambert,  L.  R.  28  Ch.  D.  186  ;  Stetson  v.  Stetson,  80  Me.  483. 


PARENT  AND   CHILD.  245 

thus  conferred  upon  the  father  may  be  delegated  to  a  school- 
master, who  may  exercise  it  under  the  same  limitations.  If 
either  father  or  schoolmaster,  in  administering  such  punish- 
ment, exceed  the  bounds  of  moderation,  he  will  be  liable  to 
an  action  for  damages  at  the  suit  of  the  child,  and  even  to  a 
criminal  prosecution  on  behalf  of  the  public. 

The  topic  of  moral  and  religious  education  is  one  of  much 
importance,  and  involves  the  mode  of  parental  training  for  the 
duties  of  citizenship.  It  has  received  great  attention  in  the 
English  courts. 

The  general  rule  of  the  English  Court  of  Chancery  is  that  an 
infant  is  to  be  brought  up  in  the  religion  of  the  father.  ^  (a)  So 
if  the  father  be  dead,  the  child  is  presumed  to  have  the  father's 
religion,  and  his  corresponding  civil  and  social  status,  and  it  is 
accordingly  the  duty  of  a  guardian  to  bring  up  the  child  in  the 
father's  religion.^ 

The  Court  of  Chancery  has  jurisdiction  to  restrain  a  father 
from  interfering  with  the  religious  education  of  his  child  in 
special  cases,  but  will  not  exercise  it  unless  the  interference  of 
the  father  will  be  injurious  to  the  happiness  and  welfare  of  the 
child.  3 

The  general  rule  above  stated  will  be  qualified  in  cases  where 
the  father,  or  if  he  be  dead,  the  relatives  of  a  different  religion, 
have  consented  to  his  education  in  another  faith  until  the  doc- 
trines of  the  religion  in  which  he  has  been  reared  have  taken  a 
strong  hold  upon  his  mind.*  In  these  and  kindred  cases  the  rule 
may  be  applied  that  though  the  father  had  an  original  right,  he 
has  abdicated  it  in  favor  of  those  who  have  conducted  the  practi- 
cal education  of  the  child.  ^  This  rule  was  not  applied  to  a  case 
where  the  court,  owing  to  the  delicate  health  of  a  young  child, 
had  directed  it  to  continue  with  the  mother  and  her  relatives, 
they  being  Protestants,  the  father  having  been  of  the  Roman 
Catholic  religion,  and  dying  while  the  child  was  only  a  few 
months  old.  It  was  directed  that  when  at  the  age  of  seven, 
and  capable  of  receiving  religious  education,  it  should  be  trained 
in  the  Roman  Catholic  religion.'' 

1  In  re  Newbery,  L.  R.  1  Ch.  App.  263.  *  Stourton  v.  Stourton,  8  De  G.  M.  & 

2  Skinner   v.    Orde,    8    Moore,    P.    C.     G.  760. 

C.  N.   s.    261  ;    s.   c.  L.  B.   4   P.  C.   60  ;  5  Hill  v.  Hill,  8  Jur.  N.  s.  609 ;  In  re 

Hawksworth  v.  Hawksworth,  L.  R.  6  Ch.  Garnett,  20  W.  R.  222  ;  Andrews  v.  Salt, 

539.  L.  R.  8  Ch.  622. 

3  In  re  Meades,  5  Ir.  R.  (Eq. )  98;  Davis  «  Austin  v.  Austin,  4  De  G.  J.  &  S.  716; 
V.  Davis,  10  W.  K.  245.  s.  c.  34  Beav.  257. 


(a)  See  also  54  &  55  Vict.  c.  3,  §  4. 


246  THE   LAW   OF   PEKSONS. 

There  may  be  cases  in  which  the  court  will  protect  the  con- 
scientious convictions  of  a  minor  child,  though  adverse  to  the 
religious  doctrines  and  declared  wishes  of  a  living  father.  Such 
a  power  should  only  be  exercised  in  an  extreme  case,  and  with 
great  caution.  ^  When  the  father  is  dead,  it  is  the  general  duty 
of  guardians  to  give  the  children  the  same  religious  training  as 
the  father  would  have  adopted  had  he  been  living.  If  this  rule 
is  not  followed,  it  is  a  ground  of  removal  from  office.  ^  (a)  The 
fact  that  it  will  be  more  to  the  pecuniary  interest  of  the  child 
to  train  him  in  one  religion  than  another,  cannot  properly  influ- 
ence the  guardian.^ 

Notwithstanding  the  rules  already  stated,  the  father  may 
abandon  or  abdicate  his  right  to  control  the  religious  education 
of  his  children.  This  will  depend  upon  his  acts.  The  fact 
that  he  has  made  children  wards  of  the  court  is  not  in  itself  an 
abdication.*  In  some  instances  there  are  ante-nuptial  agree- 
ments between  husband  and  wife  as  to  this  subject.  These  do 
not  control  the  court. ^(^)  They  will,  however,  be  taken  into 
account  in  determining  whether  the  father  has  abandoned  his 
rights.^     Instances  of  abandonment  will  be  found  in  the  note." 

III.  Rigid  to  the  services  of  a  minor  child.  — A  father  has  a 
right  to  the  services  of  his  child,  and  if  he  be  employed  by 
others,  to  recover  his  wages. ^  The  father  might  lose  his  right 
to  sue  for  wages  by  an  implied  assent  that  the  son  should  receive 
them;  as,  for  instance,  if  the  latter  should  enter  into  a  con- 
tract to  that  effect,  with  his  father's  knowledge,  the  father  might 
then  be  estopped  from  claiming  them.  By  a  New  York  statute, 
the  parent  must  notify  the  employer  within  thirty  days  after  the 
commencement  of  the  service  that  he  claims  the  Avages ;  other- 
wise, payments  made  to  the  child  will  be  valid. ^(c) 

1  In.  re  Grimes,  11  Ir.  R.  (Eq.)  465.  Garnett,  20  W.  R.  222 ;  Be  Clarke,  L.  R. 

2  Re  Hunt,  2  Cou.  &  L.  373.  21  Ch.  D.   817  ;  Re  Walsh,  13  L.  R.   Ir. 

3  Talbot  V.  Shrewsbury,  4  M.  &C.  672.  269.  In  Re  Besant,  L.  R.  11  Ch.  D.  508, 
Refei-ence  may  also  be  made  to  Skinner  v.  a  child  was  removed  from  the  custody  of 
Orde,  8  Moore,  P.  C.  C.  N.  s.  261,  and  the  mother,  because  she  had  published  an 
to  Austin  V.  Austin,  4  De  G.  J.  &  S.  716.  obscene  book. 

*  Agar-EUis  v.  Lascelles,  L.  R.  10  Ch.  »  Shute  v.  Dorr,  5  Wend.  204  ;  Went- 

D.  49.  worth  v.  Buhler,  3  E.  D.  Smith,  305. 
s  Andrews  v.  Salt,  L.  R.  8  Ch.  622.  ^  Laws  of  1850,  ch.  266  ;  see  Clinton  i-. 

6  Id.  Rowland,  24  Barb.  634. 
T  Hill  V.   Hill,  8  Jur.  n.  s.    609  ;    Re 


(n)  This   rule  is  not   changed  by  the     the  guardian.      In  re  Scanlan,   L.  R.   40 
Guardianship  of  Infants  Act,  49  &  50  Vict.     Ch.  D.  200. 

c.  27,  which,  after  the  death  of  the  father,  (h)  In  re  Nevin  [1891],  2  Ch.  D.  299. 

constitutes  alone  or  with  others  the  mother  (c)  See  McClurg  v.  McKercher,  56  Hun, 

305. 


PARENT    AND    CHILD.  247 

The  subject  of  "  emancipation  "  must  here  be  referred  to.  This 
is  a  popular  rather  than  an  accurate  expression.  It  means  the 
case  where  the  child  receives  his  wages  by  the  father's  consent 
and  supports  himself,  (a)  He  may  accordingly  sue  his  employer 
and  collect  the  wages  to  his  own  use.^  Emancipation  seems  to 
be  in  its  nature  simply  a  license,  and  to  be  revocable. -(6)  The 
contrary  seems  to  be  held  in  Pennsylvania. ^ 

It  would  seem  that  he  cannot  withdraw  liis  consent  after 
wao-es  are  earned.*  It  is  quite  plain  that  if  the  child,  notwith- 
standing its  "emancipation,"  became  sick  and  unable  to  work, 
the  father  would  be  required  to  support  it.°  Emancipation  is  a 
question  of  fact,  and  may  be  inferred  from  circumstances  as 
well  as  shown  by  express  words.  ^ 

When  a  child  is  emancipated,  the  father's  creditors  cannot 
insist  that  the  child's  earnings  shall  be  applied  to  pay  the 
father's  debts.  The  right  of  the  father  is  a  personal  one,  and 
may  be  waived.'  The  right  of  the  mother,  being  a  widow,  to 
claim  the  services  is  not  fully  settled.  It  is  acknowledged  in 
New  York, 8  but  denied  in  Pennsylvania,  and  in  some  other 
States.^ 

Actions  for  loss  of  service.  The  most  important  question  that 
arises  in  practice  is  the  right  of  a  parent  to  bring  an  action  for 
damages  for  loss  of  the  child's  services  caused  by  the  wrongful 
act  of  a  third  party.  This  is  a  question  quite  distinct  from  that 
of  the  right  of  the  child  to  bring  an  action  for  the  damage  sus- 
tained by  himself.  This  last  named  cause  of  action  would  be 
an  action  for  an  injury  to  an  absolute  right,  and  would  be  gov- 
erned by  the  same  rule  as  if  there  were  no  parent.  The  present 
inquiry  is,  whether  beyond  the  right  of  the  child  to  sue  in  his 
own  name,  there  is  an  action  by  the  parent  to  sue  in  his  name, 
and  to  hold  whatever  damages  may  be  recovered  to  his  own  use. 

It  is  well  settled  that  such  an  action  will  lie.  It  cannot, 
however,  be  maintained  for  an  injury  caused  in  carrying  out  a 
contract  with  the  child,  as,  if  a  child  were  a  passenger  on  a  rail- 

1  McCoy  y.  Huffman,  8  Cow.  84.    It  is  «  Canovar   v.    Cooper,   3    Barb.    115  ; 

there  said  that  a  father  "  may  emcMici^ja^e  Baker  v.  Baker,  41    Vt.  55;    Dierker   v. 

his  child,"  p.  85.  Hess,  54  Mo.  246. 

3  Clark  u.   Fitch,   2  Wend.   459.     The  '>  Johnson  v.  Silsbee,  49  N.  H.    543  ; 

opinion  in  this  case  was  written  by  the  Atwood     v.    Holcomb,    39    Conn.     270  ; 

same  judge  (Savage,  Ch.  J.)  who  wrote  in  Lord  v.  Poor,  23  Me.  569. 
McCoy  V.  Huffman,  siqwa.  ^  Furman  v.  Van  Sise,  56  N.  Y.  435. 

s  Gilkeson  v.  Gilkeson,  1  Phil.  194.  9  Railway  v.   Stutler,  54  Pa.   St.  375; 

*  Torrens  v.  Campbell,  74  Pa.  St.  470.  South  v.  Denniston,  2  Watts,  474,  477. 

6  Clark  V.  Fitch,  2  Wend.  459. 

{ri)  Kain  V.  Larkin,  131  N.  Y.   300  ;  (h)  Soldanels  v.  Mo.  Pacific  Ry.  Co., 

Stanley  V.  Natl.  Union  Bank,  115  N.Y.  122.  23  Mo.  App.  516. 


248  THE    LAW   OF    PEKSONS. 

road  pursuant  to  a  contract  made  by  himself,  and  were  injured 
by  the  carrier's  negligence,  the  father,  not  being  a  party  to  the 
contract,  would  have  no  cause  of  action.  The  reason  of  this 
rule  is  that  the  railroad  company  had  no  contract  with  the  father ; 
and,  in  general,  no  one  can  sue  for  a  breach  of  duty  in  carrying 
out  a  contract,  except  one  who  is  a  party  to  it. 

(1)  An  action  by  a  father  for  the  seduction  of  a  daughter. 

(2)  Other  actions  for  injury  to  a  child. 

(1)  The  action  by  a  father  for  the  seduction  of  a  daughter  is 
based  in  general  upon  a  loss  of  service.  There  are  cases  in 
which  the  claim  has  been  rested  upon  an  assumed  trespass  upon 
the  land  of  the  father  for  an  improper  purpose,  the  fact  of  seduc- 
tion being  used  in  aggravation  of  damages.  Much  the  more 
common  theory  of  the  action  is  "loss  of  service." 

This  seems,  at  first  sight,  to  be  a  very  narrow  and  technical 
ground.  Still,  practical  justice  is  done  by  this  view,  as  the  ser- 
vice is  used  only  to  give  a  basis  for  the  action,  while  the  dam- 
ages may  be  made  by  the  jury  proportionate  to  the  real  wrong 
and  disgrace  caused  to  the  father  and  to  his  family,  so  far  as 
pecuniary  damages  can  give  compensation  in  such  a  case.  The 
consent  of  the  daughter  prevents  her  from  recovering  from  the 
seducer  upon  the  maxim  volenti  non  Jit  injuria,  unless  the  act 
were  connected  with  a  breach  of  promise  of  marriage,  and  then 
the  action  must  be  based  upon  breach  of  the  contract,  and  the 
seduction  proved  in  aggravation  of  damages.  The  consent  of 
the  daughter,  however,  does  not  prejudice  the  father's  right  of 
action,  since  his  right  to  her  services  cannot  be  taken  away  with- 
out his  consent.  It  certainly  cannot  be  claimed  with  reason 
that  if  force  is  used  there  is  no  action  by  the  father.^  It  is,  in 
fact,  immaterial  whether  the  daughter  consents  or  not.  («)  The 
father  does  not  recover  as  such,  but  only  in  the  capacity  of  one 
to  whom  service  is  due.  There  are  two  cases  to  be  considered 
separately.  One  is  where  the  daughter  is  a  minor,  and  the  other 
where  she  is  an  adult.  In  the  first  case  the  father  can  maintain 
an  action,  even  though  she  does  not  live  in  the  family,  or  even 
though  she  be  in  the  employment  of  another,  receiving  wages  to 
her  own  use.  It  is  enough  that  he  is  entitled  to  her  services. 
No  a.cts  of  service  are  necessary  in  this  case.^  {h)     The  English 

1  Lawrence  v.  Spence,  29  Hun,  169  and    v.  Prime,  21    Id.  79  ;    Mulvehall  v.  Mill- 
cases  cited.  ward,  11  N.  Y.  343. 

2  Clark  V.  Fitch,  2  Wend.  459 ;  Hewitt 


(rt)  If  the  consent  of  the  parent  is  oh-  (h)  Simpson  v.  Grayson,  54  Ark.  404  ; 

tained  by  fraud,  it  furnishes  no  defence  to     Mohry  v.  Hoffman,  86  Pa.  St.  358. 
an  action  against  the  seducer  for  loss  of 
service.    Lawyer  v.  Fritcher,  130  N.Y.  239. 


PAEENT   AND   CHILD.  249 

courts  do  not  go  so  far,  but  hold  that  the  father  cannot  recover 
even  in  the  case  of  a  minor  daughter,  where  she  has  left  his 
family  without  the  intention  to  return.  ^  If  she  has  been  dis- 
charged from  service  with  another,  and  was  returning  home 
when  seduced,  the  action  will  lie.''^  (a) 

When  a  father  has  lost  the  right  to  the  minor  daughter's  ser- 
vices, no  action  will  lie, —  as,  for  example,  in  the  case  where  she 
is  seduced  while  apprenticed  to  another. ^  But  if  the  seducer 
had  caused  her  to  be  apprenticed  to  him,  having  in  view  her 
seduction,  there  would  be  no  bar  to  an  action.*  A  stepfather, 
or  other  person  standing  in  place  of  a  parent,  may  recover  when 
the  actual  relation  of  service  and  employment  exists.^  When 
the  daughter  is  over  twenty-one,  the  decisions  are  uniform. 
There  must  be  actual  service.     Slight  acts  are  sufficient. 

The  loss  of  service  in  each  case  must  be  the  direct  and  proxi- 
mate consequence  of  the  unlawful  intercourse.  In  a  case  where 
the  daughter's  fault  became  public,  and  she  was  made  sick  by  the 
exposure,  it  was  held  that  the  sickness  was  due  to  the  exposure, 
and  the  action  would  not  lie.^ 

The  damages,  when  the  action  is  by  the  parent,  may  be  exem- 
plary, and  given  as  a  solace  to  his  wounded  feelings,  and  to 
atone  in  a  measure  for  the  disgrace  to  the  family,  and  without 
reference  to  the  fact  that  the  father  is  a  man  of  bad  character.' 
If  the  action  were  brought  by  a  mere  master  or  employer  having 
no  capacity  to  be  injured  beyond  the  worth  of  the  services  lost, 
compensation  could  be  recovered  only  for  the  loss  actually 
sustained.^  The  action  is  personal,  and  the  cause  of  action  does 
not  survive  to  the  executors  in  case  of  the  father's  death,  {h) 

It  may  be  added,  though  not  strictly  belonging  to  this  topic, 
that  seduction  is  made,  under  specified  circumstances,  a  crime, 
both  under  the  laws  of  several  of  the  States,  including  New 
York,  and  by  Act  of  Congress.^ 

1  Dean  v.  Peel,  5  East,  45.  6  Knight  v.  Wilcox,  14  N.  Y.  413. 

2  Terry  v.  Hutchinson,  L.  R.   3  Q.  B.  ^  Dain  v.  Wycoff,  18  N.  Y.  45.  i 
599.                                                                             ^  Lipe  v.  Eisenlerd,  32  N.  Y.  229,  238. 

3  Dain  r.  Wycoff,  7  N.  Y.  191.  ^  py  Revised  Statutes  of  the  United 
*  Dain  v.  Wycoff,  18  N.  Y.  45.  States,"§§  5349-5351,  both  inclusive,  it  is 
5  Hartley  v.  Richtmyer,  4  N.  Y.  38.         made  a  crime  for  any  of  the  officers  or  crew 


(a)  See  Gladney  v.  Murphy,  26  L.  R.  proof  of  seduction  alone.     Stoudt  v.  Shep- 

Ir.  651.  herd,  73  Mich.  588  ;  Franklin  v.  McCorkle, 

(h)  The  common-law    rule  that  there  16  Lea,  Tenn.  60!!  ;  Felkner  r.  Scarlet,  29 

must  be  a  loss  of  service  to  entitle  a  parent  Ind.  154.     So  in  some  States  the  daughter 

or  guardian  to  sue  for  the  seduction  of  the  may  herself  prosecute  an  action  as  plaintiff 

child  is  abolished  by   statute   in   several  for  her  own  seduction-    Dodd  v.  Focht,  72 

States,  and  an  action  is  maintainable  on  Iowa,  579,  and  authorities  supra. 


250  THE    LAW    OF   PERSONS. 

(2)  Other  actions  for  injury  to  a  child.  If  the  child,  when 
thus  injured,  is  of  sufficient  age  to  render  acts  of  service,  the 
action  is  maintainable.  If,  however,  the  injury  is  temporary, 
and  the  child  is  too  young  at  the  time  the  injury  is  inflicted 
to  render  service,  substantial  damages  cannot  be  recovered  by 
the  parent.^  If,  on  the  other  hand,  the  injury  be  permanent, 
prospective  damages  are  recoverable  by  the  parent  up  to  the 
time  when  the  child  would  have  reached  twenty-one  years  of 
age.  Such  damages  are  necessarily,  to  a  considerable  extent, 
conjectural,  since  the  child  might  not  have  attained  his  majority, 
even  had  the  injury  not  occurred,  or  have  been  able  to  render 
service,  and  the  parent  might  not  live  till  that  time ;  still,  the 
whole  matter  must,  at  a  trial,  be  submitted  to  the  jury.  («) 
Expenses  attributable  to  the  injury,  actually  incurred,  or  imme- 
diately necessary,  (J)  are  also  recoverable  by  the  parent,  but  not 
such  as  are  prospective.  These  can  only  be  recovered,  if  at  all, 
by  an  action  in  the  child's  own  name.*'^ 

It  has  been  held  in  one  case  to  be  a  rule  of  law  that  if  a 
young  child  be  wrongfully  killed  by  another,  the  parent  can 
recover  damages  for  loss  of  service  up  to  the  time  when  the 
child  would  have  attained  twenty-one  had  he  lived.  ^ 

This  decision  has  met  with  much  criticism  in  later  decisions.* 
The  importance  of  the  decision  is  seriously  diminished  by 
modern  statutes,  allowing  actions  by  persons  standing  in  various 

of  an  American  vessel  during  a  voyage  to  of  seduction  the  female  has  had  unlawful 

seduce  and  have  illicit  connection  with  any  connection  with   another   (Bo}'ce  v.   The 

female   passenger.     Conviction  cannot  be  People,  si<^ra),  nor  that  pregnancy  did  not 

had  on  the  testimony  of  the  female  alone,  follow.   The  Penal  Code,  §  282,  also  makes 

The  subsequent  intermarriage  of  the  parties  the    abduction   of  females   in  certain    in- 

may  be  pleaded  in  bar  of  the  conviction,  stances  criminal. 
In  New  YoiJ%,  the  woman  must  be  unmar-  ^  Castanos  v.  Ritter,  3  Duer,  370. 

ried,  and  seduced  by  means  of  a  promise  of  ^  Cuming  v.  B.  C.  R.  R.  Co.,  109  N.  Y. 

marriage,  and  must  be  of  previous  chaste  95.     The  action  in  this  case  was  brought 

character.    N.  Y.  Penal  Code,  §§  284-286.  by  the  mother.     See  also  Hussey  v.  Ryan, 

Under  this  act  it  is  not  material  that  the  64  Md.    426  ;  Dennis  v.   Clark,  2  Cush. 

promise  was  made  some  time  prior  to  the  347.     The  English  cases  do  not  seem  to 

illicit    intercourse.      Armstrong    v.    The  allow  recovery  for  such  expenses  unless  the 

People,  70  N.  Y.  38.     The  crime  may  be  child  is  at  the  time  old  enough  to  render 

committed,     even     though    the    accused  acts  of  service.     Grinnell  v.  Wells,  7  INIan. 

effected   his  object    by    means  of   a  con-  &  G.  1033  ;  Hall  v.  Hollander,   4  B.  &  C. 

ditional   promise   that   if  the  girl   would  660. 

permit   the    illicit    connection   he   would  ^  poj-fj  ^   Monroe,  20  Wend.  210. 
marry  her.    Boyce  w.  The  People,  55  N.  Y.  *  Green  v.  Hudson  River  R.  R.  Co.,    2 
644  ;  Kenyon  v.  The  Peo|)le,  26  N.  Y.  203.  Abb.  Ct.  App.  Dec.  277  ;  Carey  v.   Berk- 
It  is  no  defence  that  after  the  alleged  act  shire  R.  R.  Co.,  1  Cush.  475. 


(a)  Dollard    v.    Roberts,    130    N,    Y.  (h)  Dollard  v.  Roberts,  supra ;  Barnes 

269.  V.  Keene,  132  N.  Y.  13. 


PARENT   AND   CHILD.  251 

relative  positions  to  recover  compensation  in  case  of  injuries  to 
those  with  whom  they  are  connected,  causing  death.  As  this 
right  is  a  statutory  one,  the  statutes  must  be  consulted  for 
details.  Some  general  principles  governing  this  legislation  may 
properly  be  stated  here,  although  it  is  not  confined  to  the  case  of 
a  parent  seeking  to  recover  for  the  loss  of  a  child. 

At  the  common  law  no  action  would  lie  for  an  injury  eauS' 
ing  death.  None  could  possibly  be  maintained  by  the  person 
killed.  The  better  opinion  is  that  none  could  be  brought  for 
loss  of  service,  unless  for  such  as  should  be  suffered  in  an  inter- 
val between  the  injury  and  death.  Where  the  death  was 
instantaneous,  no  action  would  lie  on  behalf  of  any  one.^ 

This  defect  in  the  law  was  remedied  in  England  by  a  statute 
known  as  Lord  Campbell's  Act.^  The  substance  of  this  act  has 
been  enacted  in  many  of  the  States.  The  leading  points  in  it 
are  these : — 

(1)  When  a  party  injured  would  have  had  an  action  against  a 
wrong-doer  if  death  had  not  ensued,  the  latter  is  liable  to  an 
action  notwithstanding  the  death  of  the  party  injured. 

(2)  The  action  is  to  be  brought  by  the  executor  or  adminis- 
trator of  the  person  deceased,  for  the  benefit  of  the  wife,  husband, 
parent,  and  child  of  such  person. 

(3)  The  jury  may  give  damages  proportioned  to  the  injury, 
and  may  divide  them,  after  deduction  of  costs,  among  the  benefi- 
ciaries above  named  by  their  verdict. 

(4)  There  cannot  be  more  than  one  action  for  the  same  subject 
matter  of  complaint,  (a) 

(5)  The  action  must  be  commenced  within  twelve  calendar 
months  after  the  death,  {h) 

The  second  statute  permits  the  parties  in  interest,  or  one  or 
more  of  them,  to  sue  where  there  is  no  action  brought  by  the 
executor  or  administrator  within  six  months,  and  also  allows 
the  person  causing  the  injury  to  pay  the  money  into  court  under 
certain  regulations. 

1  Per  Lord  Blackburn  in  Seward  v.  pal  promoter,  9  &  ]  0  Vict.  c.  93,  amended 
"  Vera  Cruz,"  L.  R.  10  App.  Cases  (H.  L.)  27  &  28  Id.  c.  95.  See  also  N.  Y.  Code  of 
59,  70.  Civ.  Pro.  §§  1902-1905. 

2  So  called  from  the  name  of  its  princi- 

(a)  A  recovery,  in  an  action  under  Lord  Ry.  Co.,  L.  R.  10  C.  P.  189  ;  Cf.  Pidling 

Campbell's  Act,  is  not  a  bar  to  a  subse-  v.  Great  Eastern  Pvy.  Co.,  L.  R.  9  Q.  B.  D. 

quent  action  on  contract  by  the  personal  110;   Cregin  v.   Brooklyn  Crosstown  Ry. 

representative,  for  damages  to  the  estate  of  Co.,  75  N.  Y.  192. 

the  deceased  during  his  lifetime,  caused  by  (b)  The  limitation  in  New  York  i.s  two 

the  breach  of  contract  which  resulted  in  years  from  the  date   of  death.     Code  of 

death.     Daly  v.  D.  W.  &  W.  Ry.  Co.,  30  Civ.  Pro.  §  1902. 
L.  R.   Ir.   514  ;  Bradshaw  v.  Lancashire 


252  THE   LAW   OF   PERSONS. 

The  following  leading  rules  prevail  in  the  construction  of  this 
and  similar  statutes. 

Rule  I.  If  the  injured  party,  had  he  lived,  could  not  success- 
fully have  maintained  an  action,  the  executor  or  administrator 
cannot.  One  prominent  result  is,  that  if  the  person  killed  was 
guilty  of  negligence  contributing  to  the  ijijury,  no  recovery  is 
allowed.!  The  expression  "contributory  negligence"  means 
that  neglect  on  the  part  of  the  person  injured,  without  which 
the  death  would  not  have  happened.  He  is  thus  in  a  sense 
the  author  of  the  injury  and  consequent  death.  This  rule  is 
not  applied  in  the  case  of  young  children  injured  or  killed, 
with  the  same  severity  as  in  the  case  of  adults.  Thus,  it  has 
been  held  not  to  be  negligence  in  itself  for  the  parents  of  an 
intelligent  child  four  and  a  half  years  old  to  permit  it  to  play 
in  the  crowded  streets  of  a  city  without  an  attendant,  the  child 
having  no  other  place  for  amusement. ^  Special  circumstances 
might  exist  which  would  make  the  question  one  of  fact,  to  be 
decided  by  a  jury. 

Rule  II.  The  amount  of  damages  to  be  recovered  in  the 
action  is  to  be  determined  by  the  jury  under  all  the  circum- 
stances subject  to  such  review  as  is  allowed  by  the  practice  of 
the  court  in  the  case  of  excessive  damages.  In  the  case  of  a 
child,  it  would  seem  that  the  damages  are  not  necessarily 
limited  to  its  minority.^  In  some  States  there  is  a  positive  lim- 
itation beyond  which  the  verdict  may  not  go,  —  as,  for  example, 
i5,000.  It  is  clear  that  the  father  may  recover  the  whole  value 
of  the  child's  services  up  to  majority,  within  the  statutory  limit, 
if  any.^ 

Rule  III.  The  statute  has  but  a  local  effect,  and  the  injury 
must  occur  within  the  State  where  the  action  is  brought,  or  if 
not,  within  a  State  having  a  statute  of  the  same  kind. 

Rule  IV.  The  object  of  this  legislation  was  to  give  a  personal 
action  for  damages  for  a  personal  injury.  It  cannot  be  properly 
extended  to  an  action  in  a  court  of  admiralty  against  a  ship  for 
injuries  done,  without  clearer  words  in  this  or  some  other 
statute.^ (a) 

1  This  rule  is  not  applied  under  the  3  Birkett  y.  Knickerbocker  Ice  Co.,  110 

Massachusetts    statutes    to    a    passenger,  N.  Y.  504. 

Merrill  v.  Eastern  R.  R.  Co.,139  Mass.  252.  *  McGovern  v.  N.  Y.  Central  R.  R.  Co., 

'^  Birkett  v.  Knickerbocker  Ice  Co.,  110  67  N.  Y.  417. 

N.  Y.  504.     See  as  to  contributor}'  negli-  6  Seward  v.  Vera  Cruz  R.  R.,  L.  R.  10 

gence  in  this  class  of  cases,  Bateheler  v.  App.  Cas.  59.  There  were  words  in  another 

Fortescue,  L.  R.  11  Q.  B.  D.  474.  act  giving  the  court  of  admiralty  jurisdic- 

(a)  An  action  in  personam  against  the  ralty  Division.  The  Bernina,  L.  R.  12 
owners  of  the  vessel  will  lie  in  the  Adini-     P.  D.  58  ;  atf'd,  13  App,  Cas.  1. 


PARENT   AND   CHILD.  253 

Rule  y.  Mere  mental  suffering  from  the  death  of  a  child  is 
not  an  element  of  damage  under  these  statutes.  ^  There  must 
be  true  damages,  and  if  none  are  shown,  only  nominal  damages 
can  be  recovered. 2  Conjectural  damages  are  not  recoverable, — 
such  as  that  the  party  killed  was  in  the  line  of  promotion,  and 
would  have  received  higher  wages. ^ 

Independent  of  Lord  Campbell's  Act  and  others  resembling  it, 
the  right  of  a  parent  to  recover  damages  is  so  far  affected  by  the 
act  of  the  child,  that  if  the  latter,  by  an  act  of  negligence 
contributing  to  the  injury,  could  not  himself  recover,  the  father 
cannot.  As  has  been  seen,  this  doctrine  of  negligence  is  not  to 
be  applied  to  a  very  young  child,  where  the  parent  or  other 
person  having  it  in  charge  is  not  negligent.*  Where  there  is 
doubt  as  to  the  capacity  of  the  child  to  exercise  care,  and  so 
avoid  the  effect  of  the  negligent  acts  of  another,  the  whole  ques- 
tion will  be  submitted  to  the  jury.  As  a  general  rule,  persons 
doing  acts  which  may,  when  they  are  negligent,  result  in  injury 
to  young  children,  are  bound,  if  they  are  aware  of  their  presence, 
to  exercise  more  care  to  avoid  injuring  them  than  in  the  case  of 
mature  persons.^ 

The  cause  of  action  in  this  class  of  cases  is  founded  in  tort.^ 

Where  the  injury  causing  death  tvas  committed  on  the  high  seas, 
obscure  questions  are  presented,  involving  the  power  of  the  States 
to  legislate  upon  matters  occurring  upon  the  high  seas,  if  the  ship 
belongs  to  one  who  is  domiciled  within  the  State.  The  following 
propositions  have  been  decided:  (1)  The  court  of  admiralty  has 
no  jurisdiction  in  such  a  case  independent  of  statute,  (a)  This 
result  was  reached  by  holding,  in  the  first  instance,  that  by  the 
common  law  no  action  lies  in  a  common-law  court  for  any  injury 
which  results  in  death ;  ^  and  next,  by  an  adjudication  that  there 
is  no  distinction  between  the  admiralty  law  and  the  strict  com- 
mon law  on  this  point.^     (2)  The  law  of  the  State  will  be  appli- 

tion  over  claims  "  for  damage  done  by  any         *  Mangam  v.  Brooklyn  R.  R.  Co.,  38 

ship."     These  words  were  not  sufficient  to  N.  Y.  455. 

include    a  case    under    Lord   Campbell's         s  Q'Mara  v.  Hudson  River  R.  R.  Co.,  38 

Act.  N.  Y.  445 ;  Ihl  v.  R.  R.  Co.,  47  N.Y.  317. 

1  Galveston  v.  Barbona,  62  Tex.  172.  6  Robinson  v.  Oceanic  S.  N.   Co.,  112 

2  Atchison,   &c.   R.   R.   v.  Weber,   33  N.  Y.  315. 

Kan.  543.  7  Insurance  Co.  v.  Brame,  95  U.  S.  754. 

3  Brown  v.  Chicago,  R.  I.  &  P.  R.  R.  8  The  Hanisburg,  119  U.  S.  199  and 
Co..  64  Iowa,  652.                                             many  cases  cited  in  the  opinion. 

(a)  The  Wydale,  37  Fed.  R.  716;  the  United  States,  sitting  as  a  court  of  ad- 
Welsh  V.  The  North  Cambria,  39  Fed.  R.  miralty,  where  the  local  law  which  gives  a 
615;  The  Alaska,  130  U.  S.  201  ;  The  right  of  action  to  the  personal  represen- 
Oregon,  45  Fed.  R.  62.  A  libel  m  rem  for  tatives  of  the  deceased  does  not  expressly 
damages  incurred  by  loss  of  life  will  not  create  a  lien.  The  Corsair,  145  U.  S. 
be  entertained   by  the  District  Court  of  335. 


254  THE    LAW    OF    PERSONS. 

cable  where  a  citizen  of  such  State  is  wrongfully  killed  on  board 
of  a  vessel  on  the  higli  seas,  where  the  vessel  was  registered  at  a 
port  within  the  State.^  This  decision  involves  the  further  propo- 
sitions that  the  law  of  the  State  extends  even  to  acts  done  on  the 
high  seas,  if  not  in  conflict  with  the  maritime  jurisdiction  of  the 
United  States,  and  that  there  is  no  such  conflict  of  jurisdiction.^  (a) 
A  parent  may  proceed  under  the  Civil  Damage  Act  for  inju- 
ries caused  by  the  sale  of  intoxicating  drinks  to  his  child.  The 
principles  governing  this  subject  have  already  been  considered  in 
the   fifth   section   of   the    chapter   on  the   law   of   husband  and 

wife.^ 

The  father,  however,  as  such,  has  no  rigJit  to  the  estate  of  the 
child  derived  by  inheritance,  bequest,  or  from  other  sources.  If 
there  be  money  belonging  to  him  in  the  hands  of  an  executor  or 
administrator,  he  cannot,  as  father,  demand  it.*  He  must  claim 
it,  if  at  all,  in  the  character  of  guardian,  after  giving  the  usual 
bonds.  Should  he  reside  out  of  the  State,  he  must  be  appointed 
guardian  here.^  Should  he,  as  father,  assume  to  sell  his  child's 
goods,  he  would  convey  no  title  to  the  purchaser.^ 

Section  III.  The  Relation  of  the  Child  toivards  the  Parent. — 
This  topic  may  be  considered  under  three  subdivisions. 

I.  Status  or  domicile.  II.  Rights  of  child  as  such.  III. 
Duties  of  children  towards  parents. 

1  McDonald  v.  Mallory,  77  N.  Y.  546.  ralty  and  maritime  jurisdiction."  Art.  Ill, 

2  This  point  is  by  no  means  acquiesced  §  2.  It  would  seem  reasonable  to  hold 
in  by  all  students  of  maritime  law.  The  that  the  legislative  power  was  by  implica- 
New  York  court  at  first  decided  differently  tion  exclusively  vested  in  Congress,  with- 
in the  case  of  Kelly  v.  Crapo,  45  N.  Y.  86.  out  reference  to  the  clause  concerning 
This  decision  was  reversed  in  Crapo  v.  foreign  or  interstate  commerce,  as  being 
Kelly,  16  Wallace  (U.  S. )  610,  appar-  legislation  necessarily  of  a  national  charac- 
ently  on  the  ground  that  the  ship,  though  ter  or  for  national  purposes.  The  opposite 
on  the  high  seas,  might  be  a  part  of  the  view  leads  to  the  almost  whimsical  conclu- 
territory  of  a  State,  and,  for  some  purposes,  sion  that  each  State,  no  matter  how  far 
as  completely  so  as  if  she  had  been  physi-  from  the  ocean,  has  for  certain  purposes  its 
cally  within  the  bounds  of  that  State,  own  maritime  law.  The  difficulties  attend- 
This  may  be  conceded  to  be  the  general  ing  this  view  are  forcibly  stated  in  a 
rule  of  maritime  law,  and  yet  it  may  not  he  pamphlet  written  by  R.  C.  McMurtrie, 
applicable  to  this  country,  by  reason  of  the  published  April  4,  1889. 

maritime  jurisdiction  conferred  by  the  Con-  ^  Ante,  pp.  226  et  seq. 

stitution   upon   the  United    States.     The  *  Genet  v.  Tallraadge,  1  Johns.  Ch.  3; 

whole  matter  thus  depends  upon  the  true  s.  c.  Id.  561. 

construction  of  the  Constitution.     This  is  ^  Williams  v.  Storrs,  6  Johns.  Ch.  353. 

singularly  vague  and  indefinite  as  to  the  In  New  York  a  legacy  under  $50  may  be 

legislative  power  of  Congress  over  maritime  paid  to  a  father  for  the  use  of  a  minor  child. 

subjects,  though  the  judicial  power  is  con-  Code  of  Civ.  Pro.  §  2746. 

ferred  in  very  broad  and   comprehensive  ^  Fonda  v.  Van  Home,  15  Wend.  631. 

terms.     It  extends  "  to  all  cases  of  admi- 


(n)  Cf.  "Welsh  r.  The  North  Cambria,  40  Fed.  R.  655. 


PARENT   AND   CHILD.  255 

I.  Status  or  domicile.  —  The  domicile  of  a  legitimate  child  at 
his  birth  is  in  general  that  of  the  father,  or,  if  he  be  dead,  that 
of  the  mother.  He  belongs  to  the  class  of  dependent  persons, 
and  his  domicile  may  be  changed  from  time  to  time  by  the  per- 
son upon  whom  he  is  dependent.^  If  no  such  change  be  made, 
the  "  domicile  of  origin  "  continues  during  infancy,  and  even  after 
majority,  until  he  change  it  by  his  own  act.^  Though  there 
have  been  doubts  expressed  by  some  authorities  whether  the 
mother  can  change  the  child's  domicile,  the  better  opinion  is  that, 
in  general,  if  the  father  be  dead,  and  the  mother  (not  having 
married  again)  acquire  a  new  domicile,  it  is  communicated  to 
the  infant.3  If  both  parents  be  dead,  the  power  to  change  the 
domicile  resides  in  the  grandfather  if  living,  and  if  not,  in  the 
grandmother,  if  she  be  alive.*  The  authority  vests  in  one  who 
is  guardian  hi/  nature.  If  a  female  infant  marry,  the  domicile, 
on  general  principles  of  law,  follows  that  of  the  husband.^  If  the 
mother,  having  an  infant  child  by  a  first  husband,  deceased, 
marries  again,  the  domicile  of  the  child  continues  during  in- 
fancy to  be  the  same  as  at  its  father's  death.^  The  same  gen- 
eral principles  prevail  in  the  law  of  continental  Europe.'^ 

II.  .Rights  of  child  as  such.  —  The  consideration  of  this  topic 
has  for  the  most  part  been  anticipated  in  treating  of  the  duties 
of  parents,  since  these  are  but  another  form  of  stating  the  rights 
of  the  child.  There  are  a  few  other  cases  to  be  considered. 
(1)  A  child  does  not  have  at  common  law  any  right  of  action  when 
a  father  is  injured  by  the  wrongful  act  of  another.  Under  the 
statute  for  "  injury  causing  death,"  an  action  may  be  brought 
by  an  administrator  to  recover  for  the  benefit  of  the  next  of  kin, 
among  whom  he  may  be  included.  He  may  also  have  a  statutory 
remedy  under  the  Civil  Damage  Act.^  (2)  There  are  instances 
in  which  statutes  confer  benefits  upon  a  child  in  that  character. 
An  instance  is  found  in  the  copyright  laws,  under  which  it  is 
provided  that  if  an  author  having  taken  out  a  copyright  for 
twenty-eight  years  dies  before  it  is  renewed,  a  renewal  may  be 
taken  for  the  benefit  of  the  widow  or  children.'^  So  under  the 
Homestead  laws  of  a  number  of  the  States,  the  benefits  of  the 

4 

1  Somerville  v.  Somerville,  5  Ves.  750  ;  *  Dicey  on  Domicil,  104. 

Sharpe  &  Crispin,  L.  R.  1  P.  &  D.  611.  «  Cumner   v.    Milton,    3    Salk.    259  ; 

2  Dicey  on  Domicil,  107.  Lamar   v.    Micou,    112    U.  S.  470,  471  ; 

3  Potinger  v.  Wightman,   3  Merivale,     Brown  y.  Lynch,  2  Bradf.  214. 

67  ;  Johnstone  v.  Beattie,  10  CI.  &  F.  42,  "^  1  Barge's  Colonial  &  Foreign  Laws  ; 

per  Lord  Campbell  ;  Ryall  v.  Kennedy,  40  Phillimore's  International  Law.      See  also 

N.  Y.  Super.  Ct.  347;  Lamar  v.  Micou,  works  on  the  "Conflict  of  Laws." 
112  U.  S.  452,  470.  8  Ante,  pp.  226  et  scq. 

*  Lamar  v.  Micou,  114  U.  S.  218.  9  U.  S.  Kev.  St.  §  4954. 


256  THE   LAW   OF  PERSONS. 

Homestead  act  accrue  to  minor  children  by  special  mention  in 
the  statute.!  Similar  provisions  are  found  as  to  setting  apart  in 
the  settlement  of  an  estate  certain  items  for  the  benefit  of  a 
widow  and  minor  children. 

111.  Duties  of  children  towards  parents.  —  It  is  not  intended  to 
consider  in  this  connection  moral  obligations,  but  only  legal  duties, 
—  such  as  are  capable  of  enforcement  in  a  court  of  justice. 

The  principal  duties  of  this  sort  are  maintenance  and  protection. 

(1)  Maintenance.  It  has  been  held  that,  at  common  law,  a  child 
having  means  is  under  no  duty  to  support  an  indigent  parent, 
but  that  such  an  obligation,  so  far  as  it  exists,  depends  wholly  on 
statute. 2  (a)  The  duty  is,  however,  frequently  enjoined  in  the 
poor  laws,  commencing  in  England  with  the  statute  of  Elizabeth, 
already  referred  to  when  treating  of  the  duties  of  parents.^  In 
that  statute  the  duty  to  sustain  grandparents  was  also  prescribed, 
as  it  was  in  New  York  at  one  time.*  The  present  law  only  men- 
tions parents.^  Accordingly,  a  tradesman  cannot  supply  an  indi- 
gent parent  with  necessaries,  even  though  the  child  may  have 
declined  to  support  the  parent,  and  sue  the  child  on  the  theory 
of  an  implied  contract.^  If,  however,  the  goods  were  supplied  at 
the  child's  request,  he  would  be  liable  by  reason  of  the  request.^  (5) 

(2)  Protection.  A  child  may  lawfully  aid  or  "  maintain  "  his 
parent  in  litigation.  So  he  can  justify  an  assault  and  battery 
committed  in  the  parent's  defence,  the  latter  being  first  assailed 
and  resistino;  the  attack  when  the  child  interfered.^ 


DIVISION   II.  —  Illegitimate  Children. 

It  is  not  easy  to  define  legitimacy.  The  most  general  form 
of  expression  is  that  condition  in  which  a  child  is  whose  paren- 
tage is  fully  recognized  by  law.  It  is  sometimes  stated  that  one 
who  is  "  born  out  of  wedlock  "  is  illegitimate.  This  description 
does  not  suffice,  for  it  is  now  well  settled  in  a  number  of  States 
that  one  may  be  legitimate  who  is  born  out  of  wedlock,  —  as,  for 
example,  by  the  subsequent  intermarriage  of  his  parents.  This  fact 
would  not  necessarily  confer  upon  the  person  so  legitimated  the 

1  The  statutes  are  collected  in  1  Wash-  ^  Code  of  Crim.  Pro.  §  914. 

burn  on  Real  Property  (5th  ed.)  pp.  357-  ®  Cook    v.     Bradley,     7     Conn.     67  ; 

365.                             '  Lebanon   v.    Griffin,   45   N.  H.    558. 

2  Dawson  v.    Dawson,  12  Iowa,  512  ;  ^  Lebanon  v.  Griffin,  siipra. 
Edwards  v.  Davis,  16  Johns.  281.  »  Obier  v.    Neal,    1   Houston    (Del.), 

3  A?ite  pp.  233  et  scq.  449. 
*  Ex  parte  Hunt,  5  Cow.  284. 


(a)  Herendeen  v.  DeWitt,  49  Hun,  53.  (b)  Id. 


PAKENT    AND    CHILD.  257 

right  to  be  heir  to  lands  in  a  State  where  subsequent  intermarriage 
did  not  confer  legitimacy. 

There  are  three  cases  in  which  the  question  of  illegitimacy  may 
arise :  I.  Where  the  mother  is  at  the  conception,  as  well  as  at 
the  birth  of  the  child,  an  unmarried  woman;  II.  Where  the 
mother,  being  a  married  woman,  the  husband  is  not  the  father, 
or  deemed  in  law  to  be  so ;  III.  Where  the  mother  at  the  time 
of  the  child's  birth  is  a  widow. 

I.  By  the  Roman  law,  when  the  parents  were  unmarried  at 
the  birth  of  a  child,  their  subsequent  intermarriage  would  make 
it  legitimate.  This  rule  did  not  prevail  in  the  common  law  of 
England. 

The  clergy  of  the  Middle  Ages  favored  this  rule  of  the  Roman 
law  and  desired  to  establish  it  in  England  by  statute  in  the  reign 
of  Henry  III.^  The  earls  and  barons  are  said  to  have  cried  out 
with  one  voice  that  they  were  unwilling  to  change  the  law  of 
England,  as  it  had  hitherto  existed  and  been  approved.  There 
thus  was  as  to  this  point  a  marked  antagonism  between  the 
clergy  and  the  secular  courts.  Bracton,^  writing  in  the  reign  of 
Henry  III.,  says,  "  It  is  to  be  known  that  if  any  one  has  natural 
children  by  any  woman,  and  afterwards  contracts  matrimony  with 
her,  the  children  already  born  are  legitimated  by  the  subsequent 
marriage  and  are  reckoned  fit  for  all  lawful  acts,  —  neverthe- 
less^ only  for  those  wdiich  regard  the  sacred  ministry^  but  they  are 
not  legitimate  for  those  which  regard  the  realm,  nor  are  they  ad- 
judged to  be  heirs  zvho  can  succeed  to  their  relatives,  on  account 
of  a  custom  of  the  realm  which  is  of  a  contrary  import.''^  It  has 
been  a  settled  rule  of  the  common  law  ever  since  his  day  that  no 
one  can  inherit  except  one  whom  wedlock  shows  to  be  heir. 
Hceres  est  quern  nuptice  demonstrant.  With  these  general  re- 
marks we  reach  the  subject  of  retroactive  legitimacy. 

This  expression  is  used  to  include  the  case  where  the  parents 
of  an  illegitimate  child  subsequently  intermarry,  and  tlie  subse- 
quent marriage  produces  a  retroactive  effect  and  makes  the  child 
legitimate  from  its  birth. 

This  theory  is  derived  from  the  civil  or  Roman  law,  and  has 
been  adopted  in  the  countries  of  continental  Europe  and  in  Scot- 
land. The  theories  on  which  it  proceeds  may  not  be  perfectly 
uniform.  It  is  only  proposed  to  give  a  cursory  view  of  the 
ground  on  which  the  Roman  law  rests.  That  law  assumed  that 
there  was  an  inchoate  contract  between  the  parties,  which,  when 
perfected  by  marriage,  was  drawn  back  to  the  period  of  the  com- 

1  Stat,  of  Merton,  20  Henry  III.  c.  9.  ^  I  Tvviss'  Bracton,  503. 

17 


258  THE   LAW    OF   PERSONS. 

mencement  of  the  contract,  and  that  in  this  manner  the  child 
was  made  legitimate.  A  fiction  of  law  is  resorted  to,  called  the 
doctrine  of  "relation." 

Some  important  qualifications  of  the  principle  of  retroactive 
legitimacy  arc  derived  from  this  theory.  One  is,  that  when  the 
child  was  conceived,  the  parties  must  have  had  the  capacity  to 
enter  into  a  contract  of  marriage.  They  must  be  under  no  disa- 
bility to  contract,  and  there  must  not  be  an  immoral  element  in 
the  transaction  beyond  the  unlawful  intercourse,  such  as  that  the 
man  was  a  married  man.  Moreover,  there  must  not  be  an  inter- 
mediate marriage  with  another  party.  It  was  in  the  view  of  the 
Roman  jurists  an  incomplete  contract  followed  up  by  a  complete 
one,  with  the  fiction  that  the  subsequent  complete  contract  was 
to  be  referred  back  to  the  date  when  the  original  incomplete 
contract  was  made.^ 

The  doctrine  of  the  common  law  was  different.  The  status 
created  by  bastardy  was  indelible,  except  by  act  of  Parliament. 
No  repentant  acts  of  the  parties  could  make  the  intercourse  law- 
ful from  the  beginning. 

The  States  of  the  American  Union  are  quite  divided  in  their 
policy  upon  this  subject.  Some  of  them  adhere  to  the  common 
law,  —  e.  g.,  New  York.  Others,  with  more  or  less  variations 
follow  the  Roman  law,  while  adopting  the  general  principle  of 
retroactive  legitimation. 

Difficult  questions  thus  arise  where  interstate  problems  are  pre- 
sented, depending  upon  the  effect  of  the  domicile  of  the  father. 
It  is  conceded  that  the  domicile  of  the  father  is  in  general  the 
controlling  fact  in  determining  legitimacy.  The  difficulty  is  in 
the  following  cases  :  Where  the  domicile  is  in  one  State,  and  the 
birth  of  the  child  and  perhaps  the  subsequent  marriage  in 
another ;  or,  where  the  putative  father  was  domiciled  in  one 
country  when  the  child  was  born,  and  in  another  when  the  mar- 
riage took  place.  So  it  is  a  question  whether  retroactive  legiti- 
macy will  affect  the  inheritance  of  real  estate,  when  a  different 
law  prevails  in  the  place  where  the  land  is  situated  from  that  of 
the  domicile.  Reference  may  be  made  to  the  following  propositions 
as  adjudicated. 

(1)  The  law  of  the  domicile  ought  to  prevail,  even  though  the 
child  was  born  and  the  parents  intermarried  in  another  country .^ 

1  Merlin,  Repertoire  de  Jurisprudence,  tion  as  a  matter  of  right  and  by  imperial 

Art.  Legitimation.     In  re  Wright's  Trust,  rescript  stated  and  applied  to  the  law  of 

2  Kay  \<l  J.  595.      The  rules  of  the   Ro-  Malta.     Gera  r.   Ciantar,    L.  R.  12  App. 

man  law  have  recently  been  thoroughly  Cas.  557  (1887). 
considered  by  the  House  of  Lords,  and  the         *  Munro  v.  Munro,  7  CI.  &  F.  842. 
distinction   between  subsequent  legitima- 


PARENT    AND    CHILD.  259 

(2)  If  the  father  has  changed  his  domicile  between  the  time 
of  the  birth  of  the  child  and  the  marriage,  the  law  of  the  domicile 
at  birth  may  control.^  (a) 

(3)  If  a  bastard  child  of  an  English  father  be  born  out  of 
the  Queen's  dominions,  being  an  alien  at  birth,  the  subsequent 
intermarriage  of  his  parents  will  not  make  him  a  British 
subject.2 

(4)  The  question  as  to  the  effect  of  a  marriage  following 
the  law  of  the  domicile  upon  real  estate  situated  in  another 
country  has  been  viewed  differently  by  high  courts.  There  is  a 
strong  opposition  between  the  theory  of  the  English  and  of  the 
New  York  courts.  The  question  arose  in  England  whether  if  a 
Scotchman  owning  land  in  England  should  marry  the  mother  of 
his  illegitimate  child,  the  latter  could  inherit  the  father's  land 
in  England.3  Under  the  rules  of  the  "  comity  of  nations,"  the 
child  was  clearly  legitimate.*  The  real  question  was,  whether 
the  child  was  an  heir  under  English  definitions  of  that  word ;  and 
it  was  held  that  he  was  not  an  "  heir,"  for  no  one  can  be  an 
"  heir  "  unless  horn  in  lawful  wedlock. 

As  it  is  a  settled  rule  that  the  right  to  inherit  real  estate 
depends  upon  the  law  of  the  place  where  the  land  is  situated,  it 
followed  that  he  could  not  be  an  heir  to  English  land.  Accord- 
ingly, one  might  be  a  legitimate  child,  and  yet  not  be  an  English 
heir.5  (^»)  The  New  York  court  has  refused  to  follow  the  Eng- 
lish cases,  maintaining  that  an  acquired  legitimacy  confers  the 
capacity  to  inherit  land  everywhere,  and  that  it  is  not  necessary 
that  one  claiming  an  inheritance  should  be  born  in  lawful 
wedlock.^  (c) 

1  In  re  Wright's  Trust,  2  Ka)'  &  J.  s  Birtwhistle  v.  Vardill,  2  CI.  &  F.  581  ; 
595.     In  this  case,  the  domicile  at  birth     s.  c  7  Id.  895  and  9  Bligh,  n.  s.  32. 

was   English;   at   the  time   of  marriage,  6  Miller  r.  Miller,  91  N.  Y.  315.     The 

French.     Both  systems  of  law  were  con-  court  seems  to  have  been  mistaken  in  its 

bidered  by  the  court.  opinion  (p.  322)  that  the  English  rule  was 

2  Shedden  y.  Patrick,  1  Macq.  App.  Cas.  derived  from  the  Statute  of' Merton.  In 
535,  612.  the  so-called  Statute  of  Merton  tlie  nobles 

^  Birtwhistle   v.   Vardill,    7  CI.    &  F.  rc/'j^scr^  to  change  the  then  existing  common 

^9^-  law.     Consult  Dicey  on  Domicil,  187-191. 

*  Re  Dorr's  Estate,  27  L.  J.  Ch.   98,  Smith    v.    Dorr's  Adm,    34  Pa.  St.  126, 

100;  s.  c.  4  Drewry,    194;  Skottowe   v.  and   Lingen  v.  Lingen,  45  Ala.  410,  are 

Young,  L.  R.  11  Eq.  474,  477.  contra. 


(a)  Cf.  In  re  Grove,  L.  R.  40  Ch.  D.  216.  in  England  left  to  the  "  children  "  of  his 

{b)  This  doctrine  does  not    prevent   a  father,     //i  re  Grey's  Trusts  [1892],  3  Ch. 

child  born  out  of  lawful  wedlock  in  an-  D.  88. 

other  country,  who  has  been  legitimated  (c)  Stack  v.   Stack,  6  Dem.  280.     See 

by  the  subsequent  marriage  of  his  parents  also  note  to  Simmons  v.  Bull,  56  Am.  Dec. 

there,  from  taking  a  devise  of  real  estate  261. 


260  THE   LAW   OF   PERSONS. 

11.  Where  the  mother  is  married,  hut  the  husband  is  not  the 
father.  —  This  is  called  by  a  leading  writer  on  this  subject  an  in- 
stance of  "  adulterine  bastardy."  ^  A  rule  of  public  policy  now 
becomes  potent  and  discourages  an  inquiry  into  the  facts  so  as  to 
bastardize  the  issue.  It  is  not  enough  that  an  adulterer  may 
have  been  the  father  ;  the  proof  must  be  so  strong  as  to  establish 
the  fact  that  he  must  have  been  the  father.  The  rules  of  the 
ancient  law  were  extremely  strict  in  favor  of  legitimacy,  as  shown 
by  a  remarkable  decision  in  the  Year  Book  of  32-33  Edward  I. 
(a.  d.  1304),  cited  in  a  note.^ 

At  one  time,  bastardy  could  not  be  established  unless  it  ap- 
peared that  the  husband  had  been  beyond  the  "  four  seas  "  (sur- 
rounding England).  This  rule  has  been  exploded,^  and  the  real 
inquiry  now  is,  whether  the  husband  could  have  been  the  father. 
If  the  husband  have  access  to  the  wife,  the  child  will  be  legiti- 
mate, unless  tliere  be  proof  of  impotency  or  other  evidence  equally 
convincing.  There  has  been  much  confusion  in  the  cases,  owing 
to  the  fact  that  the  word  "access"  has  two  significations;  one, 
the  opportimiti/  for  sexual  intercourse,  —  e.  g.  by  their  living  in 
the  same  house,  —  and  the  other,  sexual  intercourse  itself.  Where 
there  has  been  access  of  the  latter  sort  it  will  be  conclusively 
presumed  that  the  husband  was  the  father,  even  though  it  be 
established  that  an  adulterer  has  also  had  like  intercourse.  But 
if  "  access "  be  used  simply  in  the  sense  of  an  opportunity  for 
sexual  intercourse,. it  may  be  shown  by  circumstantial  evidence 
that  it  did  not  in  fact  occur,  in  which  case  the  child  might  be 
declared  illegitimate.  In  other  words,  the  fact  of  sexual  inter- 
course may  be  proved  or  disproved  like  any  other  fact.  At  the 
same  time,  if  the  opportunity  as  between  husband  and  wife  exists, 
the  presumption  of  law  is  that  it  took  place,  and  the  evidence  to 

1  Sir  Harris  Nicolas,  Treatise  on  the  brought  the  assise,    born  only   a  month 

Law    of   Adulterine    Bastardy,     London,  before  he  got  to  his  inn  ;  wherefore  they  of 

1836.  the  assise  [jury]  said  clearly  that  she  was 

'^  Year  Books   of  the   Eeign   of  King  not  next  heir,   because   she   was   not  his 

Edward  I.,  translated  by  Alfred  J.  Hor-  daughter,  &c.  :  but  notwithstanding  that, 

wood,  under  direction  of  the  Master  of  the  —  for  the  privacies  of  man  and  wife  cannot 

Kolls  (London,  1864).     The  reporter  says  be  known,  and  he  may  have  come  into  the 

(32  &  33  Edvv.  L  p.  62), "  I  remember  how  country  by  night  and  have  begotten  her  on 

once  a  damsel  brought  an  assise  of  Mordan-  his  wife,  —  it  was  decided  by  the  Justices 

cester  on  the  death  of  her  father,  &c.,  and  that  she  should  recover." 
the  tenant  said  that  she  was  not  the  next  ^  King  v,   Luffe,  8  East,   193,   "until 

heir;    the  assise  came  and  said  that  the  the  year  1717,  ...  a  child  born  in  wedlock 

father  of  her  who  brought  the  assise  did,  could  not  be  bastardized  unless  the  parties 

after  he  had  married  her  mother,  go  beyond  were  separated  by  a  sentence  of  divorce,  by 

sea,  and  remain  there  for  three  years  ;  and  evidence  of  the  husband's  impotency,  or  of 

that  afterwards  when  he  returned  to  his  his  absence  from  the  realm  when  it  was 

own   country   he   found    her,    who   then  begotten."     Nicolas'  Treatise,  280, 


PAEENT   AND    CHILD.  261 

the  contrary  offered  to  rebut  the  presumption  must  be  strong, 
distinct,  satisfactory,  and  convincing.  This  is  the  result  of  the 
famous  Banbury  Peerage  Case  in  England.^  (a) 

In  this  country  the  distinctions  taken  in  the  English  courts 
have  not  been  definitely  established.  It  has  been  held  in  Louis- 
iana that  nothing  can  impugn  the  legitimacy  of  a  child  born 
during  marriage,  except  proof  that  it  was  impossible  for  the 
husband  to  have  been  the  father.^  Other  courts  state  that  the 
legal  presumption  can  only  be  rebutted  by  evidence  that  shows 
"  beyond  all  reasonable  doubt "  that  the  husband  could  not  have 
been  the  father.^  In  other  cases  it  is  held  that  illegitimacy  must 
be  made  clearly  to  appear.'*  Others  follow  the  course  of  the 
later  English  decisions.^  Neither  the  husband  nor  wife,  on 
grounds  of  public  policy,  can  be  a  witness  to  prove  non-access.^  (ft) 
Nor  will  their  declarations  made  out  of  court  be  sufficient  to 
establish  illegitimacy.'^ 

Illegitimacy  may  be  proved  by  physical  facts,  such  as  that  while 
the  husband  and  wife  are  white  persons  the  child  is  a  mulatto.^ 

Where  the  parties  live  apart  by  the  decree  of  the  court,  the 
presumption  is  against  legitimacy,  though  proof  may  be  offered  to 
the  contrary. 

III.  Where  the  mother  at  the  time  of  the  child's  birth  is  a 
widow.  —  The  same  general  questions  may  arise  under  tliis  head  as 
under  the  last  subdivision,  with  the  additional  inquiry  whether 
too  long  a  period  has  not  elapsed  since  the  husband's  death  to 
admit  of  the  supposition  of  legitimacy.      No  particular  time  is 

1  This  case  is  reported  in  full  in  Xicolas'  ^  Commonwealth  v.  Strieker,  1  Browne 
Treatise,  in  an  Appendix.    It  was  followed  (Pa. ),   Appendix  47  ;   State  v.  Shumpert, 
in  Morris  v.  Davies,  5  CI.  &  F.  163,  where  1  S.  C.  85  ;  Wilson  v.  Babb,  18  Id.  59. 
the  topic  is  discussed  at  great  length.    See          ^  Tioga  County  v.  So.  Creek  Township, 
also  The  Barony  of  Saye  and  Sele,  1  H.  L.  75  Pa.  St.  433. 

Cas.  507.     Mr.  Kicolas  insists  that  this  is  ''  Dennison   r.   Page,   29   Pa.   St.  420  ; 

a  great  departure  from  the  common  law,  Bowles    v.    Bingham,   2   Munford    (Va. ), 

while  the  court  claims  that  it  is  a  proper  442. 

deduction  from  the  abandonment    of  the  »  Watkins  v.  Carlton,  10  Leigh  (Va.), 

"rule  of  the  four  seas."  560.     It  has,  however,  been  held  that  if 

2  Vernon  v.  "Vernon's  Heirs,  6  La.  Ann.  the  mother  were  an  Indian  it  would  not  be 
242.  enougli  to  prove  illegitimacy  to  show  that 

3  Phillips  u.  Allen,  2  Allen,  453  ;  Ste-  the  child  was  "colored,"  since  the  color 
gall  V.  Stegall's  Adm.  2  Brock  (U.  S.  Cir.  would  be  presumptively  attributed  to  its 
Court)  256,  264.  Indian    blood.     Illinois   L.   &   L.    Co.    v. 

*  Dennison  v.  Page,  29  Pa.  St.   420  ;     Bonner,  75  111.  315. 
Cannon  v.  Cannon,  7  Humph.  (Tenn.)  410. 


(ft)  Burnaby  v.  Baillie,  L.  E.  42  Ch.  D.  Court  of  Sessions  of  Ontario  County,  45 

2.82  ;  Bosvilev.  Attorney-General,  L.  R.  12  Hun,  54  ;  Watts  v.  Owens,  62  Wis.  512. 

P.  D.  177.  But  see  State  y.  McDowell,  101   N.  C. 

(6)  Burnaby  v.  Baillie,  supra  ;  People  v.  734. 


2G2  THE   LAW   OF   PERSONS. 

fixed  by  any  rule  of  law  (in  the  absence  of  a  statute),^  and  resort 
must  be  had  to  the  testimony  of  experts  in  physiology.  Approved 
works  on  Medical  Jurisprudence  may  be  consulted. 

There  is  a  peculiar  rule  of  the  common  law,  to  the  effect  that 
if  the  mother  has  married  again  so  soon  after  the  death  of  her 
husband  that  either  husband  might  be  the  father,  the  child  is 
more  than  ordinarily  legitimate,  and  may  choose  his  parent  as 
between  the  two  husbands.  No  case  of  that  kind  has  found  its 
way  into  the  American  reports. 

The  legal  rights  and  duties  of  the  parents  of  illegitimate 
children.  The  principal  duty  of  the  father  of  an  illegitimate 
child  is  that  of  support.  He  has  no  right  in  morals  or  in  law  to 
bring  such  a  child  into  being  and  to  cast  the  burden  of  his  sup- 
port during  infancy  upon  society. 

By  an  early  English  statute  ^  two  justices  of  the  peace  could  in 
their  discretion  make  orders  both  for  the  punishment  of  the 
mother  and  reputed  father  and  for  the  relief  of  the  parish  where 
the  child  was  born.  They  were  authorized  to  charge  the  parents 
with  the  weekly  payment  of  money  or  other  sustentation.  If 
the  order  was  not  obeyed,  the  parents  were  committed  to  jail, 
unless  they  put  in  sufficient  surety  to  obey  the  order  of  the  justices 
or  else  to  appear  at  the  next  general  sessions  of  the  peace  to  be 
held  in  the  county  and  to  abide  the  order  there  made.  This  is  in 
its  nature  a  criminal  proceeding,  and  is  followed  in  substance  in 
this  country .2  (a) 

These  old  statutes  have  been  repealed  in  England  and  those 
referred  to  in  the  note  ^  have  taken  their  place.  There  is  still  a 
general  resemblance  to  the  old  methods.  Infancy  is  no  defence 
to  an  action  on  the  undertaking  given  as  security  by  the  putative 
or  reputed  father.^ 

The  principal  right  of  a  parent  of  an  illegitimate  child  is  that 
of  custody.  The  mother  is  entitled  to  the  custody  rather  than  the 
father.^  {b)     If  the  putative  father  obtains  possession  of  the  child 

1  By  the  New  York  Code  of  Criminal  ^  Reference  may  be  made  in  New  York 
Procedure,  §  838,  a  child  is  illegitimate  if  to  the  Code  of  Criminal  Procedure,  §  838, 
a  husband  is  separated  from  the  wife  and  and  subsequent  sections,  where  proceedings 
mother  for  a  whole  year  previous  to  its  in  bastardy  are  detailed  at  length. 

birth.  4  7  &  8  Vict.  c.  101  ;  8  &  9  Id.  c.  10  ; 

2  18  Eliz.  c.  3.  There  was  a  number  of  21  &  22  Id.  c.  67;  35  &  36  Id.  c.  65,  §  2  ; 
English  statutes  on  this  general  subject     36  &  37  Id.  c.  9. 

down  to  about  the  time  of  the  American         ^  The  People  v.  Moores,  4  Den.  518. 
Revolution.  <»  Ex  parte  Knee,   1    Bos.  &  Pull.  N. 

(a)  See  also  in  New  York,  1  Birdseye's  521.     After  the  mother's  death,  the  puta- 

Piev.  Stats.  246.  five  father  is  entitled,  except  under  special 

(h)   Barnardo  v.  McHugh,  61  L.  J.  (Q.  B.  circumstances,  to  the  child's  custody.     In 

D.)  721;  Queen  v.  Nash,  L.  R.  10  Q.  B.  D.  re  Kerr,  24  L.  R.  (Ir.)  59. 
454  ;  Friesner  v.  Symonds,  46  N.  J.  Eq. 


PARENT   AXD   CHILD.  263 

by  force  or  fraud,  the  court  will  order  it  to  be  restored  to  the 
mother.^  The  court  will  issue  a  writ  of  habeas  corpus  to  bring 
up  the  child  on  the  mother's  application,  if  it  be  within  the  age 
of  nurture,  and  award  it  to  her,  unless  sufficient  reason  be  shown 
to  the  contrary ,2  If  the  child  have  sufficient  discretion  to  judge 
for  itself,  the  court  will  not  interfere."  The  father  cannot  shake 
off  his  liability  for  the  suppoi't  of  the  child  by  demanding  the 
custody  and  meeting  with  a  refusal.* 

Status  of  an  illegitimate  child.  The  status  of  an  illegitimate  child 
is  summed  up  in  the  statement  that  he  is  in  law  the  son  of  no 
one,  —  fiUus  7iullius,filius  pojmll,  films  terrce.  He  has  no  capacity 
to  inherit  land  from  his  father,  mother,  or  collatei-al  relatives,  nor 
to  take  personal  property  by  succession  from  an  intestate  relative. 
He  has  no  name  by  succession,  but  only  that  which  he  may  ac- 
quire by  reputation.  For  example,  he  would  not  be  regarded  as 
a  "  child  "  under  a  statute  which  permits  a  "  child  "  to  bring  an 
action  for  injury  to  a  father.^  Still,  he  might  by  reputation  gain 
the  name  of  "  child  "  of  one  who  had  no  legitimate  children.^ 
So  he  may  be  legally  described  by  referring  to  him  in  connection 
with  his  mother."  The  result  of  these  rules  is  that  he  is  not 
domiciled  where  his  putative  father  is,  but  takes  the  domicile  of 
his  mother  at  the  time  of  his  birth.^  But  if  the  mother  be  un- 
known, the  domicile  is  where  he  is  born.  The  domicile  may  be 
changed  from  time  to  time  during  infancy  by  the  act  of  the 
mother.^ 

An  illegitimate  child,  notwithstanding  these  artificial  rules,  is 
for  some  purposes  recognized  as  having  blood  relatives.  Thus, 
an  illegitimate  person  cannot  marry  a  blood  relative  of  any  nearer 
degree  than  a  legitimate  person. ^^ 

Rules  of  2?ublic  policy  as  affecting  such  children.  The  law 
discourages  the  procreation  of  such  children,  but  at  the  same 
time  countenances  and  permits  provision  to  be  made  for  them 
when  once  in  existence. 

Accordingly,  all  contracts  and   grants  made  in  view  of  illicit 

R.   148  ;  Rex  v.  Soper,  5  Term  R.  278  ;  ^  Dickinson  v.  North  Eastern  Ry.  Co., 

Bex  V.  Moseley,  5  East,  224  n.  ;  People  v.  2  H.  &  C.  735. 

Landt,  2  Johns.  375  ;  Carpenter  v.  Whit-  «  Wilkinson  v.  Adam,  1  Ves.  &  B.  422. 

man,  15  Id.  208  ;  Matter  of  Doyle,  Clarke's  "  Crook  v.  Hill,  L.  R.   3  Ch.  Div.  773. 

Chanc.  R.  (N.  Y.)  154  ;  People  v.  Kling,  ^  Dicey  on  Domicil,  5. 

6  Barb.  366.  «  Id.  97. 

1  Robalina?>.  Armstroncf,  15Barb.  247.  1°  Hains    v.    Jcffell,    1    Ld.    Raymond, 

2  Rex  y.  Hopkins,  7  East,  579;  Roba-  68;  apjiroved  of  in  People  v.  Lake,  110 
Una  V.  Armstrong,  15  Barb.  247.  N.  Y.  61,  where  it  was  held  tliat  under  the 

3  In  re  Lloyd,  3  M.  &  G.  547.  New  York  Penal  Code,  §  302,  incest  may 
*  Carpenter    v.    Whitman,    15    Johns,     be  committed  by  a  father  with  an  iliegiti- 

208.  mate  daughter. 


264  THE    LAW    OF    PERSONS. 

relations,  and  all  provisions  made  for  such  children  as  may  come 
into  existence  by  means  of  such  relations,  will  be  declared  null 
and  void,  (a)  An  example  is  a  future  estate  in  land  to  vest  in 
a  prospective  illegitimate  child. ^  A  similar  provision  in  favor  of 
one  in  existence  and  sufficiently  described  would  be  upheld. ^ 

So  a  court  of  equity  will  enforce  a  trust  created  by  a  father  in 
favor  of  such  a  child.^  Still,  it  has  been  held  that  the  ordinary 
convevance  termed  a  "  covenant  to  stand  seized,"  which  has  the 
consideration  of  duty  and  atTectioii  to  uphold  it  as  between  a 
father  and  legitimate  child,  has  no  consideration  to  uphold  it  in 
a  like  conveyance  to  illegitimate  offspring.  The  natural  love  and 
affection  in  the  latter  case  is  not  equivalent  in  law  to  the  same 
affection  in  the  former  case,  supported  as  it  is  by  legitimacy.^ 

It  is  well  settled  that  if  the  reputed  father  promise  to  pay 
money  to  the  mother  in  consideration  that  she  will  maintain  the 
child,  or  relinquish  its  custody  and  management,  and  she  act 
accordingly,  the  promise  will  be  binding  upon  him.^  Where 
such  an  agreement  purported  to  bind  the  father  to  support  a 
child  (nearly  six  years  old)  "  until  it  was  able  to  do  for  itself," 
it  was  held  that  it  must  be  in  writing  in  order  to  comply  with  the 
Statute  of  Frauds.^ 

The  New  York  Court  of  Appeals  further  holds  that  the  natural 
olli(jation  arising  out  of  the  relation  of  the  father  to  the  child  is 
a  sufficient  consideration  for  a  contract  on  his  part  to  pay  for  its 
support  and  maintenance.'^  Having  once  made  the  agreement,  he 
continues  to  be  bound  by  it  until  he  renounces  the  child  or  other- 
wise notifies  the  persons  so  supporting  and  maintaining  it  that 
he  will  no  longer  be  liable  to  them.^ 

Establishment  of  legitimacy  by  a  direct  legal  proceeding.  By 
the  common  law,  there  is  no  mode  of  establishing  legitimacy  by 
a  direct  proceeding  for  that  purpose.  This  is  a  serious  defect, 
as  it  leaves  the  matter  of  determining  one  of  the  most  important 
relations  of  life  subject  to  distressing  uncertainty,  and  that,  fre- 
quently, for  many  years.  This  defect  has  been  to  some  extent 
remedied  in  England  by  the  legislation  referred  to  in  the  note.^ 

1  Crook  V.  Hill,  L.  R.  3  Cli.  Div.  773.      Roche,    6   C.    B.    (n.  s.)   223  ;    Todd  v. 

2  Id.  Weber,  95  N.  Y.  181,  and  cases  cited. 

8  William.son  v.  Codrington,  1  Ves.  Sr.  ^  Farrington  v.  Donohoe,  1  Ir.  R.    C. 

511  ;  Knye  v.  Moore,  1  Sim.  &  Stuart,  61.  L.)  675. 

*  Fursaker  v.  Robinson,  Precedents  in  ^  Todd  v.  Weber,  supra. 

Chan.  475  ;  s.  c.  Gilbert,  Eq.  R.  139.     But  8  Todd  v.  Weber,  supra  ;  Cameron  v. 

see  Todd  v.  Weber,  95  N.  Y.  181.  Baker,  1  C.  &  P.  268  ;   Nichole  v.  Allen, 

5  In  re  Pla.skett,  30  L.  J.  (Ch.)  606  ;  3  C.  &  P.  36. 
Jennings   v.    Brown,    9    M.    &   W.    496  ;  9  21  &  22  Vict.  c.   93.     Any  natural- 
Hicks  V.  Gregory,  8  C.  B.  378  ;  Smith  v.  born  subject  of  the  Queen,  or  any  person 

(re)  Thompson  v.  Thomas,  27  L.  E.  (Ir.)  457. 


PARENT   AND    CHILD. 


26: 


Such  legislation  might  well  be  copied  in  substance  by  the  States 
of  this  country. 

American  statutes  modifying  the  rules  of  the  common  law  as 
to  illei/itimacy.  Statutes  have  been  passed  in  some  of  the  States 
which,  while  they  recognize  in  general  the  disabilities  of  illegiti- 
macy, to  some  extent  modify  them.  The  statutes  of  New  York 
provide  that  if  an  illegitimate  person  die  without  descendants, 
his  estate  shall  descend  to  his  mother,  and  if  she  be  dead,  to  the 
relatives  of  the  intestate  on  the  part  of  the  mother,  as  if  the 
intestate  had  been  legitimate,^  and,  further,  that  illegitimate  chil- 
dren, in  default  of  lauful  issue,  shall  take  by  succession  from 
their  mother  both  real  and  personal  property,  as  if  they  had  been 
legitimate.^  (a)  In  some  instances  special  statutes  are  enacted 
making  a  specified  illegitimate  person  legitimate,  while  the  gen- 
eral law  remains  unaffected.  Such  a  law,  if  passed  with  the 
father's  consent,  would  apparently  be  constitutional  if  vested 
rights  were  not  affected, —  as,  for  example,  if  an  illegitimate  son 
were  legitimated  before  his  father's  death.  The  legitimate  chil- 
dren could  not  legally  complain  because  a  prospective  heir  had 
been  added  to  their  number  by  legislative  act.^ 


whose  right  to  be  deemed  a  natural-born 
subject  depends  wholly  or  in  part  on  his 
legitimacy  or  on  the  validity  of  a  marriage, 
being  domiciled  in  England  or  Ireland,  or 
claiming  property  situated  in  England,  may 
apply  by  petition  to  the  court  of  divorce 
praying  for  a  decree  that  the  petitioner  is 
the  legitimate  child  of  his  parents  and  that 
the  marriage  of  his  father  and  mother  or  of 
his  grandfather  and  grandmother  was  a 
valid  marriage.  He  is  also  allowed  to  ask 
for  a  decree  that  his  own  marriage  is  valid. 
Notice  of  the  application  must  be  given  to 
the  Attorney-General,  who  is  deemed  to  be 
a  respondent  in  the  proceeding.  The  court 
has  power  to  order  such  persons  to  be 
summoned  to  attend  the  proceedings  as  it 
may  see  fit.  The  decree  is  not  binding 
upon  persons  not  cited  or  made  parties, 
though  the  representatives  of  persons  cited 
are  bound.  An  appeal  lies  to  the  House 
of  Lords.  See  22  &  23  Vict.  c.  61,  §  7. 
The  court  has  no  jurisdiction  under  this 
act  to  declare  the  petitioner  to  be  the  heir 
of  another  person.  Mansel  v.  Atty-Gen'l., 
L.  R.  2  P.  D.  265.     It  may  declare  a  mar- 


riage valid,  where  the  woman  had  pre- 
viously gone  through  a  ceremony  of  mar- 
riage with  a  man  whose  wife  was  living  at 
the  time.  Shilson  v.  Atty-Gen'l.,  22  W. 
R.  831.  It  cannot  decide  upon  a  claim 
to  a  title  of  honor,  such  as  a  baronetcy. 
Frederick  v.  Atty-Gen'l.,  L.  R.  3  P.  &  D. 
196.  It  may  declare  a  foreign  divorce  to 
be  void,  and  as  a  consequence  a  later  mar- 
riage between  the  same  parties  to  be  in- 
valid. Shaw  V.  Atty-Gen'l.,  L.  R.  2  P.  & 
D.  156. 

1  1  R.  S.  753,  §  14. 

2  Laws  of  1855,  ch.  547,  modifying  1  R. 
S.  754,  §  19;  Ferrie  v.  Pub.  Adm.,  3  Bradf. 
249. 

3  Beall  V.  Bealls,  8  Ga.  210.  In  this 
case  the  father's  consent  was  presumed  from 
the  circumstances  of  the  case.  One  of  the 
methods  of  legitimation  in  the  Roman  law 
was  by  "imperial  rescript "  at  the  solici- 
tation of  the  father.  Tliis  usually  occurred 
only  when  the  father  eould  not  enter  into 
marriage  with  the  mother  and  there  were 
no  legitimate  children.  ]\Iackeldey,  Rom. 
Law,'  §  599. 


{a)  See  Bunce  v.  Bunce,  27  Abb.  N,  C.  61. 


266  THE   LAW   OF   PERSONS. 


DIVISION   111.— Adopted  Children. 

The  common  law  provides  no  mode  whereby  children  can  be 
legally  adopted.  Such  modes  are  established  by  the  Roman  law 
and  are  sufficiently  stated  in  Book  1.  of  the  Institutes  of  Justinian, 
title  eleven.^  There  were  two  methods  recognized  in  that  sys- 
tem ;  one  by  imperial  rescript,  and  the  other  by  judicial  order. 
The  former  was  resorted  to  when  the  person  to  be  adopted  was 
independent  of  paternal  authority ;  the  latter  when  he  was 
dependent,  or  under  power  (potestas}.  In  this  last  case  the 
adopted  person  still  remained  under  the  power  of  his  father, 
though  he  was  entitled  to  share  in  the  succession  of  his  adopting 
father,  if  he  died  intestate.  The  adoption  of  a  person  not  being 
under  the  power  of  a  parent  was  called  "  arrogation,"  which  was 
always  to  be  made  under  certain  conditions  showing  the  propriety 
of  tlie  act,  while  security  must  be  given  to  a  public  agent  that  if 
the  adoptee  died  within  the  age  of  puberty,  the  adopter  would 
return  the  property  received  with  him  to  the  persons  who  would 
have  been  entitled  to  succeed  to  his  estate  in  case  no  adoption 
had  taken  |:)lace.  The  adoptee  was  in  most  respects  in  the  same 
position  as  if  he  had  been  a  legitimate  child  of  the  adopter.  The 
fiction  of  parentage  was  consistently  carried  out.  The  adopter 
must  be  older  than  tlie  adoptee,  as  it  would  be  "  unnatural "  for 
a  son  to  be  older  than  his  father.  He  must  even  be  eighteen 
years  older,  since  that  age  was  assumed  to  be  the  time  at  which 
he  could  have  been  father.  A  person  might  adopt  a  person  as 
"  grandson  "  without  having  had  either  a  son  or  an  adopted  son, 
though  the  consent  of  the  father  of  the  proposed  grandson  would 
be  requisite. 2 

Persons  who  were  impotent  could  adopt,  but  not  those  who  had 
been  mutilated.  Women  could  not  adopt  except  to  comfort 
them  for  the  loss  of  children  who  had  been  taken  from  them. 

The  leading  principles  of  the  Roman  law  of  adoption  have  been 
borrowed  in  a  number  of  the  American  States,  New  York  being 
one  of  them.  A  brief  sketch  of  the  New  York  law  is  given 
below.  3 

1  The  translation  by  J.  R.  Moyle  is  very  the  adoption  jf  children  in  orphan  asj'lums 

faithful  and  clear.    Vol.  II.  p.  15  (Claren-  and  charitable  institutions.     See  Laws  of 

don  Press,  Oxford,  1883).  1884,  ch.  438. 

-  Mackeldey's   Roman  Law  (Dropsie's  Adoption  is  defined  to  be  a  legal  act 

ed.),  §§  592,  594.  whereby   an  adult  person   takes  a  minor 

3  Laws  of  1873,  ch.  830,  as  amended  by  into  the  legal  relation  of  child.     The  lead- 
Laws  of  1887,  ch.  703  ;  Laws  of  1888,  ch.  ing  rales  are,  — 
48,;,  and  Laws  of  1SS9,  ch.  58,  concerning  I.  Any  minor  child  may  be  adopted  by 


PARENT   AiND   CHILD. 


267 


Adoption  without  legal  authority  creates  simply  a  voluntary 
relation  between  the  parties,  which  may  be  terminated  at  will. 
The  adopting  parent,  while  the  relation  continues,  cannot 
demand  payment  for  the  child's  support,  nor  can  the  latter 
make  any  claim  for  services.^  The  transaction  may  assume, 
under  special  circumstances,  such  a  form  that  the  father  of  the 
child  cannot  even,  without  the  aid  of  a  statute,  revoke  the 
consent  given  to  the  adoption  without  legal  reason. ^ 


any  adult,  except  that  neither  husband 
nor  wife  can  adopt  without  the  other's 
consent  unless  they  have  been  lawfully 
separated. 

II.  The  consent  of  the  minor  of  over 
twelve  years  of  age  is  necessary. 

III.  The  consent  of  the  living  parents 
or  parent  of  a  legitimate  child,  or  of  the 
mother  of  an  illegitimate  child,  is  neces- 
sary, except  that  if  the  father  or  mother 
be  deprived  of  civil  rights,  or  divorced  for 
adultery  or  cruelty,  or  adjudged  to  be  in- 
sane or  an  habitual  drunkard,  or  judicially 
deprived  of  the  custody  of  the  child  on 
account  of  cruelty  or  neglect,  consent  is  not 
necessary,  though  in  this  class  of  cases  con- 
sent should  be  given  by  the  person  having 
the  child  in  lawful  custody.  There  may 
also  be  such  an  abandonment  by  the  parent 
as  to  forfeit  all  claim  to  the  custody  of  the 
child,  in  which  case  also  consent  is  not 
necessary.  Laws  of  1873,  ch.  830,  §  11, 
as  amended  by  Laws  of  1889,  ch.  58. 

IV.  The  proposed  adopter,  the  adoptee, 
and  the  persons  whose  consent  is  necessary, 
should,  in  order  to  give  the  transaction 
a  legal  character,  appear  before  the  county 
judge  of  the  county  where  the  adopter 
resides,  and  the  requisite  consents  be 
signed,  and  a  proper  agreement  executed. 
The  appearance  is  dispensed  with  in  case 
the  parent  is  a  non-resident.  Laws  of 
1888,  ch.  485. 

The  judge  is  required  to  examine  each 
person  appearing  before  him,  separately, 
and  if  satisfied  that  the  "  moral  and  tem- 
poral "  interests  of  the  child  will  be  pro- 
moted by  the  adoption,  he  will  make  an 
order  setting  forth  the  reasons  for  it,  and 
directing  that  the  child  shall  thenceforth 
be  regarded  and  treated  as  the  child  of  the 
person  adopting. 

V.  The  effect  of  an  adoption  must  be 
regarded  from  two  points  of  view,  (1)  as 
between   the   adopter   and    the   adoptee  ; 


(2)  as    between    the   child   and    its    real 
parents. 

(1)  The  adoptee  takes  the  name  of  the 
adopter.  The  two  henceforth  sustain  the 
legal  relation  of  parent  and  child,  and 
have  all  the  rights  and  are  subject  to  all 
the  duties  of  that  relation,  including  the 
right  of  inheritance.  The  heirs  and  next 
of  kin  of  an  adopted  child  are  the  same  as 
if  he  were  the  legitimate  child  of  the 
adopter.  To  this  general  rule  there  is  a 
single  exception.  This  is  that  in  the  case 
of  futui'e  interests  in  property  arising 
under  deeds,  wills,  and  trusts  dependent 
upon  the  adopter  dying  without  heirs,  the 
adoptee  shall  not  be  deemed  to  sustain  the 
legal  relation  of  child  to  the  adopter,  so  as 
to  defeat  the  rights  of  the  "remainder 
man,"  the  person  who  is  to  take  the  fu- 
ture estate  nnder  the  circumstances  above 
described.  In  like  manner,  in  case  of  the 
death  of  the  child,  the  adopter  will,  for 
the  purpose  of  inheritance,  sustain  the  re- 
lation of  parent  to  it.  Laws  of  1887, 
ch.  703,  amending  the  earlier  statute. 

(2)  The  real  parents  of  the  adopted 
child  are  henceforward  relieved  from  all 
parental  duties,  and  have  no  rights  over 
the  child. 

VI.  A  child,  once  adopted,  cannot  be 
deprived  of  the  rights  thus  obtained,  ex- 
cept by  the  same  sanction  and  consent 
required  for  the  act  of  adoption,  and  all 
proceedings  for  such  abrogation  sliall  be 
in  writing,  signed  by  the  county  judge  or 
justice  of  tlie  Supreme  Court,  and  recorded 
in  the  office  of  the  county  clerk.  Laws  of 
1873,  ch.  830,  §  13. 

For  other  legislation  upon  this  subject 
the  statutes  of  the  various  States  should 
be  consulted. 

1  Brown  v.  AVelsh's  Ex'r,  27  N.  J.  Eq. 
429  ;  Ela  v.  Brand,  63  N.  H.  14. 

2  Janes  v.  Cleghorn,  54  Ga.  9. 


CHAPTER  VII. 

GUARDIAN    AND   WARD. 

The  title  "  guardian  "  is  now  appropriated  to  the  case  of  one 
who  has  legal  charge  of  an  infant  or  a  minor.  The  term  fre- 
quently includes  the  parents,  but  is  more  specifically  used  to 
designate  one  who  acts  in  the  place  of  a  parent,  and  who  is 
either  designated  by  him,  or  appointed  by  a  court,  or  recognized 
as  such  by  some  rule  of  law. 

The  relation  of  guardian  and  ward  was  recognized  and  well 
defmed  in  the  Roman  law.  Its  rules  are  instructive,  and  are 
stated  in  a  preliminary  section. 

Section  I.  Rules  of  Roman  Law  as  to  G-uardiansliip. —  The 
Roman  law  distinguished  between  two  classes  of  persons  in- 
trusted with  the  care  of  others  who  were  not  able  to  take  care 
of  themselves:  one,  tutors,  and  the  other,  curators.  Tutor- 
ship applied  to  immature  persons,  such  as  boys  under  four- 
teen years  of  age,  and  girls  under  twelve.  Curatorship  extended 
to  all  other  persons  who,  for  special  reasons,  needed  care,  — such 
as  idiots,  the  insane,  the  deaf,  dumb,  and  blind,  and  prodigals. 
Thus  the  tutor  answered  closely  to  our  present  guardian,  while 
the  curator  corresponded  with  the  "  committee  "  or  "  conservator  " 
of  a  lunatic  or  habitual  drunkard  of  the  present  time.  Our 
present  concern  is  with  the  "  tutor  "  or  guardian,  and  the  topics 
to  be  referred  to  may  be  arranged  under  the  following  heads : 

L  His  appointment ;  H.  The  general  character  of  his  duties ; 
and,  ni.   His  accountability. 

I.  His  appointment.  —  A  tutor  could  be  appointed  by  the  will 
of  a  parent  in  the  same  manner  as  a  father  can  now  create  a 
testamentary  guardian.  The  appointment  could  be  made  to  in- 
clude children  born  after  the  execution  of  the  will  (called  pos- 
tumi).  An  imperfect  appointment  of  this  kind  could  in  some 
cases  be  confirmed  by  the  proper  magistrate,  though  this  would 
after  all  appear  to  be  a  case  of  public  appointment.  A  tutor 
could  be  appointed  conditionally,  or  for  a  specified  time,  or  for 
a  specific  purpose,  —  such  as  to  aid  his  ward  in  contracting  a 
marriage,  or  in  carrying  forward  a  particular  law  suit.      The 


GUARDIAN    AND    WARD,  269 

later  jurists  thought  that  such  a  special  appointment  was  inele- 
gans  or  in  "bad  form,"  and  inclined  to  the  opinion  that  the 
appointment  must  be  general.  Statutes  commencing  as  early 
as  the  Twelve  Tables  gave  the  power  of  appointment  to  magis- 
trates or  other  public  officers. 

II.  The  general  cliaracter  of  his  duties.  —  A  ward  could  do  some 
acts  without  the  guardian's  consent,  as  where  the  act  would  im- 
prove his  condition,  but  not  where  it  would  make  it  worse.  In 
other  words,  the  ward  could  acquire  rights,  but  could  not  incur 
liabilities.  Accordingly,  he  could  not,  without  the  sanction  of 
his  guardian,  enter  into  bilateral  contracts,  nor  undertake  the 
performance  of  a  trust.  Assuming  that  the  sanction  of  the  guar- 
dian was  necessary,  it  should  be  made  to  accompany  the  ward's 
act,  and  not  be  a  subsequent  ratification.  The  guardian,  hav- 
ing thus  important  powers,  was  required  to  give  security,  to  be 
approved  by  the  proper  authority,  for  the  performance  of  his 
duties.  The  magistrate,  if  of  inferior  rank,  was  made  person- 
ally liable  if  he  allowed  him  to  act  without  sufficient  security. 
This  rule  was  not  extended  to  testamentary  guardians,  as  the 
confidence  which  the  testator  had  reposed  in  them  was  considered 
a  sufficient  guarantee  of  their  capacity  and  fidelity. 

It  is  interesting  to  trace  in  the  law  the  progress  of  ideas  in 
regard  to  this  relation.  It  was  at  first  deemed  rather  the  rif/ht 
of  a  particular  person  to  be  a  guardian.  Finally,  it  came  to  be 
regarded  as  a  trust,  and  a  public  duty  or  office,  which  one 
appointed  to  was  bound  to  accept,  unless  exempted  in  the  same 
general  way  as  certain  classes  of  persons  were  exempted  from 
holding,  office.  It  was  a  branch  of  this  notion  of  trust  that  the 
guardian  could  not  represent  the  ward  in  any  conflict  of  interest 
between  them,  but  a  special  person  should  be  appointed  in  such 
a  case  to  act  for  the  ward. 

III.  His  accountability/.  —  Accountability  to  the  ward  was 
rigidly  exacted.  The  guardian  could  be  made  to  render  an 
account  before  the  proper  magistrate.  If  it  appeared  that  he 
had  wilfully  wasted  the  assets,  he  could  be  punished  criminally. 
His  act  in  that  case  was  infamous.  It  was  not  so  if  he  had 
acted  negligently. 

The  guardian  could  be  removed  on  "  suspicion  "  even  before 
he  commenced  his  administration.  Want  of  faithfulness  to  his 
trust  was  a  sufficient  ground,  even  though  he  were  perfectly 
solvent,  or  offered  to  give  security.  No  guardian  could  be 
removed  simply  because  he  was  poor,  provided  that  he  was 
faithful  and  diligent.  It  was  a  sufficient  charge  to  show  that, 
having  means,  he  did  not  provide  the  ward  with  a  sufficient 


270  THE    LAW   OF    PERSONS. 

maintenance.  In  fact,  as  a  usual  rule,  he  performed  his  duty 
when  he  paid  over  the  income  of  the  property  he  had  in  charge 
to  the  immediate  friends  of  the  ward.  His  misconduct  in  the 
main  was  that  of  a  defaulting  trustee.  An  accusation  against 
him  was  open  to  any  one,  even  to  the  female  relatives,  who 
might  strive  to  save  a  youth  from  suffering  harm  "  without  seem- 
ing to  be  more  forward  than  becomes  their  sex." 

Section  II.  The  different  Kinds  of  Gruardians  in  English  and 
American  Law.  —  Guardians  are  of  various  sorts ;  they  may  be 
classified  under  two  general  heads:  first,  those  created  by  a 
mere  rule  of  law;  second,  those  appointed  by  some  lawful 
authority.  Those  of  the  first  class  are :  (1)  guardians  by  nature ; 
(2)  by  nurture;  (3)  in  socage;  (4)  by  estoppel.  Those  of  the 
second  class  are :  (1)  testamentary  guardians ;  (2)  guardians 
appointed  by  the  court  of  chancery;  (3)  probate  or  surrogate's 
guardians ;  (4)  guardians  ad  litem  and  special  guardians. 

Guardians  created  hy  law.  —  (1)  Guardianship  hy  nature  is  an- 
other expression  for  the  authority  of  the  father.  He  has  the  care 
of  the  child's  person,  but  not  necessarily  of  his  estate.  This 
guardianship  at  common  law  was  confined  to  the  heir  apparent. 

(2)  Guardianship  hy  nurture  extended  to  the  other  children, 
but  did  not  last  beyond  the  age  of  fourteen.  The  mother  would 
be  entitled  to  this  form  of  guardianship  in  case  of  the  father's 
death.  It  was  also  confined  to  the  person,  and  did  not  include 
the  child's  estate. 

There  is  no  basis  for  drawing  these  distinctions  in  this 
country,  since  all  the  children  are  equally  "heirs  apparent." 

(3)  The  phrase  in  socage  is  a  technical  expression,  referring  to 
one  of  the  principal  tenures  of  land  under  the  feudal  system  in 
England.  While  that  system  prevailed,  land  was  held  in  Eng- 
land from  some  superior  lord  under  two  principal  tenures;  one 
was  military,  called  "  knight  service ;  "  the  other  was  non-mili- 
tary, requiring  fixed  and  certain  services,  called  "socage."  The 
former  was  highly  favorable  to  the  guardian,  and  very  burden- 
some to  the  ward ;  the  other  was  designed  for  the  benefit  of  the 
ward,  and  the  guardian  corresponded  to  our  modern  notion  of 
a  trustee.  The  former  continued  until  the  ward  was  twenty- 
one  years  of  age;  the  latter,  until  he  was  fourteen.  At  the 
time  of  the  English  rebellion  nearly  two  thirds  of  the  land 
was  held  under  the  military  tenures.  These  became  extremely 
unpopular  as  being  oppressive  and  unjust,  and  were  abolished  in 
1660,  at  the  time  of  the  restoration  of  Charles  II.  (12  Car.  II. 
e.  24,  1660),  and  all  land  then  subject  to  military  tenures  was 
thenceforth  held  in  free  and  common  socage.     From  this  time 


GUARDIAN   AND   WARD.  271 

forward,  guardianship  ceased  to  bo  a  method  of  transferring 
the  rents  and  profits  of  hand  to  the  pocket  of  the  guardian  for 
his  own  use,  and  became  a  trust  enforceable  like  other  trusts  in 
the  Court  of  Chancery. 

The  leading  rules  governing  guardianship  in  socage  are 
these :  — 

1.  It  must  be  committed  to  a  relative  who  can  by  no  possi- 
bility inherit  the  land  under  guardianship  in  case  of  the  ward's 
death.  This  rule  is  founded  on  the  supposition  that  a  relative 
who  could  inherit  might  be  induced  to  take  the  ward's  life. 
The  old  proverb  was,  "  One  must  not  commit  the  lamb  to  the 
wolf  to  be  devoured."  The  courts  formerly  held  that  the  rule 
was  based  on  sound  policy  and  humanity.  The  modern  view  is 
that  it  is  the  product  of  unnecessary  suspicion  and  of  too  low  a 
view  of  the  motives  of  the  average  man.  ^  It  could  not  well 
exist  in  a  country  like  ours,  where  all  of  one's  blood  relatives 
may  by  possibility  inherit,  and  it  has  accordingly  been 
discarded, 

2.  This  guardianship  only  exists  when  the  ward  has  real 
estate.  Still,  if  he  also  has  personal  property,  that  will  be 
included,  (a) 

3.  It  regularly  continues  until  the  ward  is  fourteen,  when  he 
may  call  the  guardian  to  account.  Still,  if  no  other  guardian 
be  appointed,  it  may  tacitly  continue  until  the  ward  is  twenty- 
one.  2 

4.  It  is  a  personal  trust,  and  cannot  be  assigned  by  the  guar- 
dian to  another. 

In  New  York  this  form  of  guardianship  is  regulated  by  stat- 
ute.-^ This  statutory  guardianship  is  more  extensive  than  at 
common  law,  that  being  confined  to  lands  acquired  by  descent. 
At  common  law,  as  applied  to  our  rules  of  inheritance,  a  father 
could  not  be  guardian  in  socage  to  his  child,  as  he  may  inherit 
from  him;^  under  the  statutes  he  may  be.^  He  may  lease  the 
land  to  a  tenant  so  long  as  he  continues  guardian,   the  lease 

1  Dormer's  Case,  2  P.  Wms.  262.  same   degree  of  consanguinity,  males  are 

-  Byrne  v.  Van  Hoesen,  5  Johns.    66  ;  preferred  to  females.     The  powers  of  such 

Emerson  v.   Spicer,    46  N.  Y.  594,  596  ;  a  guardian  are  superseded  by  the  appoint-' 

Jackson  v.  Combs,  7  Cow.  36.  ment  of  a  testamentary  guardian  or  of  a 

^  The  guardianship  vests  by  a  rule  of  general    guardian    by   the   proper   court. 

tlie  statute,  (1)  in  the  father  ;  (2)  if  there  1  R.  S.  718,  719. 

be  no  father,  in  the  mother  ;  (3)  in  default  *  Jack.son  v.  Combs,  7  Cow.  36. 

of  a  parent,  in  his  nearest  and  eldest  rela-  5  Fonda  v.  Van  Home,  15  Wend.  631, 

tive  of  full  age,  not  being  under  legal  inca-  633. 

pacity.    Where  several  relatives  are  of  the 


(a)  Cf.  Foley  v.  Mut.  Life  Ins.  Co.,  64  Hun,  63. 


272  THE   LAW    OF   TERSONS. 

being  defeasible  on  the  appointment  of  another  guardian  find 
his  election  to  avoid  it^  The  powers  of  the  guardian  are  also 
pointed  out  in  the  statutes.  ^ 

(4)  The  meaning  of  the  expression  guardianship  ly  estoppel 
is,  that  a  person  who  is  not  a  guardian  may  so  interfere  with 
the  estate  of  an  infant  as  to  be  prevented  from  denying  that 
he  is  a  guardian.  He  sustains  the  liabilities  of  a  guardian 
without  being  a  guardian  in  truth.  The  object  of  this  rule  is 
to  give  the  infant  the  same  remedies  against  such  a  person  as 
he  would  have  against  a  guardian.  He  can  accordingly  be  re- 
garded as  having  acted  in  a  fiduciary  character.  Still,  he  may 
be  treated  by  the  infant  as  a  mere  wrong-doer,  so  that  the  result 
is  that  the  infant  has  an  election  to  treat  him  as  a  guardian  or 
as  a  wrong-doer. 3  If  several  persons  jointly  take  the  profits  of 
the  infant's  land  without  authority,  the  accounting  should  be 
had  against  them  as  if  they  had  been  joint  guardians."* 

Guardians  appointed.  —  (1)  Testamentary  guardians  did  not 
exist  at  common  law,  but  originated  in  the  English  statute 
before  referred  to.^  It  grew  out  of  the  abolition  of  the  mili- 
tary tenures.  The  lands  having  been  converted  into  socage 
tenure,  minors  came  to  have  power  to  control  their  estates  at  the 
age  of  fourteen.  As  too  much  liberty  was  thought  likely  to  be 
injurious,  it  was  deemed  wise  to  limit  their  power  by  authorizing 
fathers  to  appoint  guardians  by  will  or  instruments  of  that 
nature.  The  Court  of  Chancery  does  not  appear  to  have  exer- 
cised the  power  of  appointment  of  guardians  until  1696.  Since 
that  time  its  jurisdiction  has  been  constantly  resorted  to,  while 
the  testamentary  guardianship  also  exists,  at  least  in  some  of  our 
States.  The  substance  of  the  English  statute  is,  that  a  father, 
whether  of  full  age  or  a  minor,  may  by  deed  or  will  dispose  of 
the  custody  of  his  children  during  their  minority  or  for  a  shorter 
period  to  any  person  either  "in  possession  or  remainder,"^  and 
that  this  guardian  shall  be  entitled  to  take  the  rents  and  profits 
of  the  ward's  land  for  the  latter's  benefit  while  the  guardian- 
ship continues,  and  also  to  have  the  custody  and  management  of 
his  personal  estate. 

These  words  of  the  statute  permit  the  father,  in  case  he  appoints 

1  Emerson  V.  Spicer,  46  N.  Y.  594.  5  ]2  Car.   II.   c.    24,  §§   8,   9.      Tliis 

2  See  in  New  York,  2  R.  S.  1.^3,  §§  3  statute  was  drawn  by  Lord  Clnef  Justice 
and  20.  Hale.       See   Eyre   v.  Sliaftsbury,   2   P. 

3  Van  Epps  v.  Van  Deusen,  4  Paige,  Wms.  102,  125. 

64;    Sherman    v.    Ballon,    8   Cow.    304;  6  xhe  expression  "remainder"  means, 

Blomfield  v.  E3're,  8  Beav.  250  ;  Boddy  v.  "  to  commence  at  his  death  or  at  a  later 

Lefevre,  1  Hare,  602  n.,  and  cases  cited.  day." 
*  Wyllie  V.  Ellice,  6  Hare,  505. 


GUARDIAN    AND    WAKD.  273 

two  or  more  guardians,  to  authorize  a  survivor  to  appoint  another 
in  place  of  one  deceased. ^  The  statute  does  not  inchide  illegiti- 
mate children. 2  The  mother  of  such  a  child  has  no  })ower  to  act 
under  the  statute.^ 

The  power  of  this  kind  of  guardian  is  that  of  a  guardian  in 
socage.  He  is  entitled  to  the  custody  of  his  ward,  even  as 
against  the  mother  (subject  to  the  discretion  of  the  court),*  and 
may  resort  to  a  writ  of  habeas  corjjus  to  obtain  possession  of  the 
ward's  person  in  the  same  general  way  as  a  father  may.5(a) 

A  testamentary  guardian  is  not  regularly  required  to  give 
security,  the  rule  being  that  "he  whom  the  father  has  trusted 
may  be  trusted  by  the  court. "^  Where  there  are  suspicious 
circumstances,  security  will  be  required,  and  modern  decisions 
in  England  have  placed  them  nearly  on  a  footing  with  other 
guardians.'^ 

The  court  does  not  remove  a  testamentary  guardian  without 
cause.  ^  The  English  statute  of  12  Car.  11.  is  substantially 
re-enacted  in  New  York.  The  power  would  not  exist  without  a 
statute.  The  statute  is  intended  solely  for  wills  or  deeds  of 
residents,  and  is  strictly  local.  ^  The  further  provision  is  made 
that  if  the  father  be  dead,  having  made  no  appointment,  the 
mother  may  constitute  a  testamentary  guardian, ^^  and,  if  she 
survive  her  husband  for  one  year,  may  displace  by  deed  or  will 
a  testamentary  guardian  appointed  by  him.^^ 

A  law  of  1862  required  the  assent  of  the  mother  to  a  valid 
appointment  by  the  father. ^^  This  rule  has  not  been  expressly 
repealed,  though  it  has  been  held  to  be  repealed  by  implica- 
tion by  the  law  of  1871,  referred  to  in  the  note.^^  A  married 
woman  has  no  power  by  deed  or  will  to  appoint  her  husband 
testamentary  guardian  of  her  children.^* 

The  Code  of  Civil  Procedure  provides  detailed  regulations  for 
recording  these  appointments,  — the  "qualifications  "  of  such  a 
guardian,  the  special  cases  where  security  will  be  required  for  an 

1  In  the  Goods  of  Pamell,  L.  R.  2  P.  «  Beaufort  v.  Berty,  1  P.  Wms.  702  ; 
&  D.  379.  Dillon  v.  Mount  Cashel,  4  Bro.  P.  C.  306. 

2  Sleeman  v.  Wilson,  L.  R.  13  Eq.  36.  ^  Wuesthoff  v.  Germania  Life  Ins.  Co., 

3  Ex  parte  Glover,   4  Dowl.  Pr.   Cas.  107  N.  Y.  580. 

291.  10  Laws  of  1871,  ch.  32. 

4  Talbot  V.   Shrewsbury,   4   M.   &  C.         "  Laws  of  1888,  ch.  454. 
672.  12  Laws  of  1862,  ch.  172,  §  6. 

s  7?ire  Andrews,  L.R.  8  Q.B.  153;  Rex  13  Thomson  v.  Thomson,  55  How.  Pr. 

p.  Isley,  5  A.  &  E.   441.  494. 

6  Child  V.  Child,  Finch,  360.  •*  Beardsley  v.  Hotchkiss,  96  N.  Y.  201, 

'  Blake  v.  Blake,  2  Sch.  &  Lef.  26.  215. 


(a)  See  People  v.  Walts,  122  N.  Y.  238. 
13 


274  THE   LAW   OF   PERSONS. 

inventory  of  assets,  for  the  judicial  settlement  of  his  accounts, 
his  removal  from  office,  his  resignation,  and  the  appointment  of 
a  successor.^ 

A  grandfather  cannot  appoint  a  guardian  to  his  grandcliild. 
Accordingly,  if  he  direct  in  his  will  that  the  rents  and  profits  of 
land  be  applied  by  his  executors  to  the  education  of  his  grand- 
child during  his  minority,  the  executors  and  not  the  guardian 
appointed  by  the  court  are  entitled  to  apply  the  rents  and  profits 
according  to  the  will.- 

{'2)  General  ij  Hard  tans  appointed  by  the  Court  of  Chancery  con- 
stitute a  second  class  of  guardians  by  appointment.  The  Court 
of  Chancery,  in  England,  exercises  this  power  on  an  assumed 
delegation  of  authority  from  the  king  as  parens  patritv.  There 
are  several  matters  deemed  to  be  under  the  care  and  superinten- 
dency  of  the  king, —  such  as  charities  and  the  custody  of  idiots, 
lunatics,  and  infants.  The  king  is  supposed,  under  this  doc- 
trine, to  have  the  care  of  all  such  persons  as  are  not  able  to 
care  for  themselves.^ 

This  authority  of  the  court  over  infants  must  be  considered  to 
have  existed  from  its  origin.  Though  taken  away  for  a  time  by 
the  statute  which  created  the  Court  of  Wards  and  Liveries,  yet 
when  that  court  was  abolished,  in  IGGO,  the  authority  returned, 
though  its  exercise  was  for  a  time  dormant. 

A  court  of  equity  in  this  country  would  have  the  same  power 
as  the  Court  of  Chancery  in  England.  In  a  number  of  the  States 
the  jurisdiction  in  law  and  equity  is  in  the  same  court.  This, 
in  New  York,  is  the  Supreme  Court.  There  are  two  classes  of 
cases  needing  distinct  consideration :  one  is  where  the  infant  is 
under  fourteen ;  and  the  other,  where  he  is  fourteen  and  upwards.* 
In  the  first  class  of  cases  the  jurisdiction  of  the  court  is  broad 
and  practically  unlimited.  The  relatives  have  no  control.  They 
attend  on  an  application  for  an  appointment  merely  to  give  the 
court  information  of  the  fitness  of  a  pei'son  to  be  selected  by 
itself  and  to  protect  the  infant's  interests. °  The  court  in  mak- 
ing an  appointment  will  consider  the  welfare  of  the  child,  his 

1  Code  of  Civ.  Pro.  §§  2851-2360,  both  the  origin  of  the  jurisdiction  of  the  court 

inchisive.  as    nnsatisfactor)',    and    deems   it   as  an 

-  Fullerton  v.  Jackson,  5  Johns.  Ch.  usurpation  which  was  generally  acquiesced 

278  ;  Hoyt  v.  Hilton,  2  FaIw.  Ch.  202.  in  from   the   necessity   of  the   case,    the 

*  Cary  v.  Bertie,  2  Vern.  333  ;   Eyre  first  authentic    instance   of    appointment 

V.  Shaftsbury,  2  P.  Wms.  102,  119  ;  Butler  being  in  Hampden's  Case,  in  1696. 
r.  Freeman,  Ambler's  R.   301  ;  per  Lord  *  See,  for  the  mode  of  appointment  and 

Hakdwicke.     Mr.  Hargrave  in  a  note  to  other  matters.  Rules  r>2.  53.  54,  and  59  of 

Coke   iipon   Littleton,    SSb,    regards  the  the  Supreme  Court  of  New  York, 
explanation  given  in  the  law  books  as  to  ^  Uaderhill  v.  Dennis,  9  Paige,  202. 


GUARDIAN   AND   WARD.  275 

attachments  and  mode  of  education,  the  wishes  of  deceased 
parents,  the  probability  that  another  appointment  will  soon  be 
necessary,  and  other  matters  of  the  same  kind,  which  would 
naturally  influence  a  sound  judgment. ^  It  is  common  to  appoint 
relatives  when  they  are  suitable  persons.  The  court  is  not 
limited  by  the  technical  rules  prevailing  in  the  case  of  guar- 
dianship in  socage.^ 

When  the  infant  is  fourteen  and  upwards,  the  court  will  be 
largely  guided  by  his  wishes.  Its  function,  in  general,  is  to 
give  judicial  sanction  to  his  action. ^  So  he  may  apply  at  this 
time  for  the  removal  of  a  guardian  previously  appointed,  and  the 
substitution  of  one  chosen  by  himself.  The  court,  however, 
may,  in  its  discretion,  deny  his  application.^ 

Before  an  appointment  is  made,  an  inquiry  should  be  had  as 
to  the  amount  of  the  infant's  property,  and  the  guardian  be 
required  to  give  bonds  for  the  faithful  performance  of  his  duties. 
The  amount  of  the  security  will  depend  upon  the  value  of  the 
estate.  The  rules  of  the  court  will,  in  general,  fix  the  amount.^ 
Where  the  security  first  taken  turns  out  to  be  insufficient,  an 
additional  amount  may  be  required.** 

The  guardian  may  be  removed  on  good  grounds,  such  as 
unfitness,  insolvency,  fixed  habits  of  intemperance,  etc.^  An 
appointment  may  also  be  revoked  where  the  court  has  acted 
improvidently  in  making  it. 

(3)  Probate  or  surrogate'' s  giiardians  are  the  third  class  of 
guardians  existing  by  appointment.  The  ecclesiastical  court  in 
England  (to  which  the  surrogate  or  probate  court  in  this  country 
corresponds)  had  no  power  to  appoint  a  guardian,  except  a 
guardian  to  conduct  a  litigation  {ad  litem).  "The  guardian 
appointed  by  the  spiritual  court  was  nothing  at  all,  for  they 
appoint  anybody  guardian  in  that  court  for  the  mere  purpose  of 
appearing. "8  The  power  of  the  surrogate,  etc.,  to  appoint  a 
general  guardian,  is  accordingly  statutory.  If  the  judge  does 
not  follow  the  statute,  his  errors  will  be  corrected  on  appeal. 
The  surrogate  is  a  county  officer,  and  has  jurisdiction  only  in 
his  own  county,  while  the  jurisdiction  of  the  Court  of  Chancery 

1  Bennett  v.  Byrne,  2  Barb.  Ch.  216.        nent  barristers.     Hargrave's  note  to  Coke 

2  Morehouse  u.  Cooke,  Hopkins  R.  226.     upon  Littleton,  88  b. 

•  This  may  flow  from  an  idea,  at  one  *  Matter  of  Nicoll,  1  Johns.   Ch.  25  ; 

time  prevailing,  that  an  infant  might  ap-  Matter  of  Dyer,  5  Paige,  534. 

point  his  guardian  by  deed  executed  by  ^  Bennett  v.  Byrne,  2  Barb.  Ch.  216. 

himself.      The  last  Lord  Baltimore,   who  6  Monell  v.  Monell,  5  Johns.  Ch.  283. 

died  in  1771,  when  eighteen  appointed  by  "^  Kettletas  v.  Gardner,  1  Paige,  488. 

deed  a  guardian  of  liis  proprietary  interests  ^  Rex  v.  Delaval,  3  Burr.  1434,   1436 

in  Maryland  under  the  advice  of  two  emi-  (6th  par.). 


276  THE   LAW   OF   PERSONS. 

in  England  is  general,  and  that  of  the  corresponding  court  here, 
extends  throughout  the  State.  In  complicated  cases  the  equi- 
table jurisdiction  is  the  more  satisfactory  of  the  two.^ 

The  general  mode  of  proceeding  is  substantially  the  same  as 
in  the  case  of  a  chancery  guardian.  An  ancillary  guardian  is 
provided  for  by  the  statute  of  New  York,  when  the  infant,  resid- 
ing out  of  the  State,  has  property  within  the  State.  A  con- 
venient method  is  thus  provided  whereby  a  guardian  appointed 
elsewhere  can  act  within  the  State. ^ 

The  surrogate  or  probate  guardian  is  under  the  general  super- 
intendence of  the  court  of  equity  (in  New  York  the  Supreme 
Court),  and  he  may  be  removed  by  the  latter  court  for  good 
cause. ^  An  appeal  lies  also  from  the  decision  of  the  surrogate's 
court  refusing  to  make  an  appointment,^  as  well  as  from  his 
order  making  an  appointment.^ 

(4)  G-uardians  ad  litem  and  special  guardians  may  be  ap- 
pointed by  any  court  having  jurisdiction  over  infants,  as  each 
court  has,  as  incidental  to  such  jurisdiction,  power  by  the  ap- 
pointment of  a  guardian  to  protect  the  infant's  interest  pending 
a  litigation.  This  is  true  even  of  a  court  of  inferior  grade,  such 
as  that  of  a  justice  of  the  peace.  ^  Such  a  person  is  termed  a 
guardian  ad  litem.  He  may  be  the  general  guardian,  or  some 
officer  of  the  court  qualified  to  protect  the  ward's  interests.  He 
cannot  act  without  an  appointment,  even  though  he  be  a  general 
guardian.  The  mode  of  appointment  is  either  regulated  by 
statute  or  by  a  rule  of  court.  ^  (a) 

A  special  guardian  has  substantially  the  same  functions  as  a 
guardian  ad  litem,  and  the  words  are  frequently  used  without 
discrimination.  The  phrase  "special  guardian"  is  sometimes 
employed  where  there  is  no  litigation,  or  no  interest  adverse  to 
that  of  the  infant,  as  where  there  is  an  application  pending  in 
court  for  the  sale  of  his  land.^  His  character  in  this  case 
is  entirely  distinct  from  that  of  a  general  guardian,  so  that 
if  he  should  be  guilty  of  breach  of    trust  in  his  special  char- 

1  The  jurisdiction  of  the  surrogate's  *  Kellinger  v.  Roe,  7  Paige,  362. 
court  in  New  York  is  found  in  the  Code  ^  Underhill  v.  Dennis,  9  Id.  202. 
of  Civil  Procedure,  §  2472,  and  the  mode  6  Mockey  v.  Grey,  2  Johns.  192. 

of   appointment,    etc.,  in   §§  2821-2850,  '  Rules  50  and  51  of  the  Supreme  Court 

both  inclusive.  of  New  York. 

2  Code  of  Civ.  Pro.  §§  2838-2841.  8  Rules  55  and  57  of  the  Supreme  Court 

3  Ex  parte  Crumb,  2  Johns.  Ch.  439.  of  New  York. 


(a)  The  omission  to  appoint  a  guardian  an  appointment  may,  in  the  discretion  of 

ad  litem  for  an  infant  plaintiff  before  the  the  court,  be  made  nuTic  pro  tunc.     Rima 

bringing  of  the  action,  is  not  a  jurisdic-  v.  Eossie  Iron  Works,  120  N.  Y.  433. 
tional  defect,  but  a  mere  irregularity,  and 


GUARDIAN   AND   WARD.  277 

acter,  his  sureties  on  his  bond  as  general  guardian  would  not 
be  liable.^ 

Section  III.  The  Powers  of  Guardians.  —  There  is  an  impor- 
tant distinction  between  the  rights  of  a  guardian  over  personal 
property  and  over  real  estate.  As  to  the  personal  property,  he 
has  the  ownership  or  title  in  trust  for  the  infant.  He  may,  for 
example,  receive  legacies  and  shares  of  an  intestate's  estate 
coming  to  the  infant. ^  He  may  sell  to  a  purchaser  in  good  faith, 
who  will  hold  the  goods,  even  though  the  guardian  misappro- 
priate the  proceeds.^  The  infant's  remedy  is  against  the  un- 
faithful guardian.  With  the  real  estate  it  is  quite  different. 
The  guardian  has  only  the  right  to  lease  it  and  receive  the  rents 
and  profits  during  the  regular  continuance  of  the  guardianship. 
The  general  rule  was  first  established  as  to  guardians  in  socage ; 
and  testamentary  and  chancery  guardians  have  the  same  power 
in  this  respect.^  {a) 

But  no  guardian  has  a  power  to  sell  the  ward's  land.  There 
is  no  mode  at  common  law  by  which  that  can  be  sold  except 
through  an  act  of  the  legislature,  a  so-called  "private  act,"^  or 
by  general  statute.  Without  that,  the  Court  of  Chancery  can 
make  no  valid  order  of  sale.  Such  general  statutes  are  to  be 
found  in  the  various  States  of  the  Union.  The  statute,  however, 
is  the  measure  of  the  court's  authority,  and  if  it  is  transcended, 
the  excess  will  be  void.^  There  is  an  exception  to  this  rule 
where  the  property  directed  to  be  sold  is  equitable  in  its  nature, 
and  the  sale  is  for  the  infant's  support  and  maintenance." 
Another  exception  is  where  the  sale  is  made  incidentally,  for  the 
purpose  of  enforcing  the  rights  of  other  parties,  as  in  the  fore- 
closure of  a  mortgage  or  partition  of  lands. ^  The  course  of 
proceeding  in  New  York  is  detailed  in  the  Code  of  Civil  Proce- 
dure,^ and  the  court  rules.  ^*^ 

1  Muir  V.   Wilson,   Hopkins,   R.   512  ;  5  Powers  v.  Bergen,  6  N.  Y.  358. 
Clark  V.  Montgomery,  23  Barb.  464.     The          6  B^ker   v.    Lorillard,    4   IS".    Y.  257  ; 
rules  of  the  Supreme  Court,  already  re-     Rogers  i'.  Dill,  6  Hill,  415. 

ferred  to,  should  also  be  consulted.  t  Pitcher  v.   Carter,    4   Sandf.   Ch.   1; 

2  Genet  v.  Tallmadge,  1  Johns.  Ch.  3.       Wood  v.  Mather,  38  Barb.  473. 

^  Field  V.  Schieffelin,  7  Johns.  Ch.  150.  8  Adams   on   Equity,   284,    and   cases 

*  A  general  guardian  also  has  power  to  cited. 

authorize  an  action  for  the  recovery  of  an  9  §§  2348-2364. 

infant's  land,  and  to  provide  for  the  com-  i"  Rules  of  the  Supreme  Court,  55-59. 
pensation  of  counsel.     Matter  of  Hynes, 
105  X.  Y.  560. 

{a)  In  New  York  a  general  guardian  to  bought  in  the  prnpertj'  at  the  sale  as  gen- 

whoni,  as  such,  a  mortgage  has  been  as-  eral  guardian,  he  may  sell  it  without  leave 

signed,  may  bring  an  action  of  foreclosure  of  the  court.     Bayer  v.   Phillips,  17  Abb. 

withoiit  joining  the  infant ;   and  having  N.  C.  425. 


278  THE   LAW   OF   PEKSONS. 

The  substance  of  this  legislation  is  that  the  land  may,  by 
judicial  order,  be  conveyed,  mortgaged,  or  leased  either  to  pay 
debts  or  for  the  infant's  maintenance  or  necessary  education,  or 
because  the  property  is  unproductive,  or  for  the  purpose  of 
raising  funds  to  preserve  and  improve  it,  or  where  there  is 
other  special  reason  for  sale,  or  for  the  purpose  of  fulfilling  a 
contract  or  enforcing  a  trust.  ^  The  application  is  made  by  a 
guardian  or  some  relative  or  friend,  and  if  the  infant  is  fourteen 
and  upwards,  he  joins  in  the  petition.  Where  the  application 
is  made  to  pay  debts  or  for  the  infant's  supposed  benefit,  the 
particulars  and  value  of  the  property  must  be  stated  in  the 
petition,  the  amount  of  its  income  as  well  as  the  disposition  that 
has  been  made  of  the  personal  property,  and  the  amount  of  the 
debts.  The  court  must  appoint  a  special  guardian,  who  files  a 
specified  bond.^  The  matter  is  then  referred  to  a  referee 
appointed  by  the  court,  who  examines  into  the  truth  of  the  state- 
ments in  the  petition  in  a  specified  manner,  and  reports  and  files 
his  report.  Then  the  court  makes  a  final  order,  directing  the 
land  to  be  sold,  mortgaged,  or  leased,  as  the  case  may  be,  by 
the  special  guardian.  In  negotiating  the  sale,  etc.,  the  special 
guardian  makes,  in  the  first  instance,  a  preliminary  agreement, 
subject  to  the  approval  of  the  court.  If  that  is  obtained,  a  con- 
veyance, etc.,  is  executed,  except  that  if  the  case  is  one  where 
the  proper  course  is  to  direct  a  conveyance  in  the  first  instance, 
the  guardian  must  report  the  conveyance  on  oath. 

The  proceeds  of  the  sale,  though  in  form  money,  are  deemed  in 
law  to  be  real  estate,  so  that  the  infant  will  have  no  greater 
power  over  them  than  if  they  were  in  fact  land.  This  statutory 
rule  proceeds  upon  the  equitable  theory  of  "  reconversion. "  All 
that  is  not  needed  for  the  special  purposes  for  which  the  land  is 
sold  is  assumed  by  a  fiction  of  law  to  be  converted  back  into 
land.  The  infant,  owing  to  his  disability,  is  not  allowed  to 
elect  to  take  the  proceeds  of  the  sale  as  an  adult  might  do.^ 
They  are  to  be  invested  in  the  same  manner  as  trust  moneys  for 
his  benefit,  so  far  as  they  are  not  needed  to  pay  his  debts  or  for 
his  support  or  that  of  his  family.  The  kind  of  investment  must 
be  reported  to  the  court  upon  oath.  There  are  also  provisions 
for  the  disposition  of  future  estates,  as  well  as  those  of  a  tem^ 
porary  nature. 

There  is  a  very  important  restriction  upon  the  power  of  the 
court  to  order  a  sale,  to  the  effect  that  no  order  of  sale,  lease, 

1  §§  2345,  2346,  and  2348.  Reconversion,  Chaps.  IX.  &  X.  (9th  ed.) 

^  §§  2351  and  2352.  This  work  is  a  repioduction  of  the  lectures 

'  See  Snail's  E(-[mty,  Conversion  and     of  a  distinguished  jurist,  Mr.  Birkbeck. 


GUARDIAN   AND    WARD.  279 

or  mortgage  can  be  made  contrary  to  the  provisions  of  a  will 
by  which  it  was  devised,  or  of  a  conveyance  or  other  instrument 
by  which  it  was  transferred  to  the  infant.  If  such  an  order  were 
made,  it  would  be  void,  and  the  purchaser  would  obtain  no 
title.  1 

It  is  a  general  remark  that  as  the  jurisdiction  of  the  court  is 
statutory,  it  must  be  strictly  followed. ^  It  should  be  observed 
that  the  present  statute  requires  that  certain  things  "  must  "  be 
done.  It  would  appear  that  this  language  makes  the  acts  pre- 
scribed vital.  Accordingly,  if  the  statutory  direction  be  not 
complied  with,  a  purchaser  under  the  proceeding  will  obtain  no 
title.  3  (rt) 

In  case  a  sale  is  desired  that  cannot  be  had  under  the 
authority  of  these  sections,  a  private  act  of  the  legislature  must 
be  resorted  to.''  The  general  power  of  the  legislature  to  pass 
such  statutes  in  the  case  of  sales  of  land  of  infants,  lunatics, 
and  other  incompetent  persons  has  been  frequently  affirmed  by 
the  courts  as  a  branch  of  the  doctrine  of  parens  patrice.^  It  has 
been  said  to  be  a  most  necessary,  useful,  and  beneficent  power, 
which  should  by  no  means  be  fettered.'' 

It  is  the  opinion  of  some  jurists  that  a  guardian  has  the  same 
power  to  change  the  domicile  of  the  ward  as  a  parent.  The 
point,  however,  is  not  definitely  adjudicated,  and  the  law  is  un- 
certain.^ His  authority  in  most  respects  is  analogous  to  that 
of  a  father.  He  may,  for  example,  direct  the  religious  education 
of  his  ward  in  the  same  general  manner.^ 

As  a  general  rule  the  authority  of  a  guardian  is  local,  not 
extending  beyond  the  jurisdiction  of  the  country  or  of  the  State 

1  Code  of  Civ.  Pro.  §  2357 ;  Rogers  land  made  under  sanction  of  Parliament, 
V.  Dill,  6  Hill,  415;  Muller  v.  Strupp-  p.  877.  Acts  of  this  kind  are  still  fre- 
nian,  6  Abb.  N.  C.  343.  quently  passed  by  the  New  York  legisla- 

2  Battell  V.  Torrey,  65  N.  Y.  294;  ture.  An  instance  is  Laws  of  1874,  ch.  73. 
Matter  of  Valentine,  72  Id.  184.  5  Rjce   y.    Parkman,     16    Mass.    326; 

3  Thus  it  is  said  in  §  2349  that  the  in-  Clarke  v.  Van  Surlay,  15  "Wend.  436  ; 
fant,  if  fourteen  and  upwards,  must  join  in  Cochran  v.  Van  Surlay,  20  Id.  365. 

the  petition  ;  in  §  2350,  that  the  petition  6  Sohier  v.   Mass.  General  Hospital,  3 

viust  be  verified,  and  that  it  must  set  forth  Cush.  483,  497. 

the  grounds  of  the  application,  etc.  '^  Dicey  on  Domicil,   100  ;  Potinger  v. 
*  The  subject  of  "  Private  Act,"  as  it  Wightnian,  3  Mer.  67  ;  Douglas  v.  Doug- 
exists  at  common  law,  is  well  treated  in  las,  L.  R.  12  Eq.  617,  625  ;  per  Gray,  J., 
Cruise's  Digest,   Greenleafs  ed.    VoL   II.  in  Lamar  v.  Micou,  112  U.  S.  472. 
873.      It  is  in  substance  a  conveyance  of  ^  Ee  Browne,  2  Ir.  Ch.  151. 


(a)  Even  though  the  statutory  require-  was  resorted  to  not  for  the  benefit  of  the 

ments  were  complied  with,  and  the  infant  infant,  but  to  cure  a  defect  in  the  title, 

received  a  fair  value  for  his  interest,  yet  Weinstock  v.  Levison,  26  Abb.  N.  C.  244. 

the  sale  will  be  void  where  the  proceeding  - 


2S0  THE   LAW    OF    PERSONS. 

where  he  is  appointed,  though  for  some  purposes  he  is  recognized 
abroad.  If  the  infant  has  property  in  another  State,  an  appoint- 
ment must  be  made  there  to  receive  and  manage  it,  though  the 
same  jierson  may  be  appointed  in  both  States.  The  presence  of 
assets  in  a  State  is  a  sufficient  basis  for  the  appointment  of  a 
guardian  there.  Accordingly,  a  court  in  one  State  would  not 
direct  an  executor  to  pay  over  a  legacy  to  a  person  appointed 
guardian  in  another  State  of  the  Union.  ^  (a) 

Guardianship  over  the  person  is  governed  by  different  consid- 
erations. Thus,  the  ward  of  a  French  guardian  might  be  tem- 
porarily in  one  of  our  States.  There  would  seem  to  be  no  good 
reason  why  the  French  guardianship  should  not  be  so  far  recog- 
nized as  to  permit  the  ward  to  be  controlled  as  to  his  personal 
conduct,  or  to  be  withdrawn  from  the  State  to  France  by  the 
guardian. '-^ 

The  English  court  has  refused  to  allow  a  New  York  guardian 
to  withdraw  from  England  the  child  of  an  English  father  and  an 
American  mother,  but  this  action  was.  taken  on  the  special 
ground  that  an  English  court  would  not  send  an  English  citizen 
abroad.^  However,  a  foreign  guardian  would  not,  it  is  pre- 
sumed, be  allowed  to  exercise  any  more  power  over  the  ward  than 
is  permissible  by  our  laws ;  as,  for  example,  personal  chastise- 
ment, even  though  he  did  not  exceed  what  was  allowable  by  his 
own  law.^ 

The  result  worked  out  in  Nugent  v.  Vetzera,  cited  in  the  note, 
was,  that  while  the  court  would  leave  the  foreign  guardian  in  full 
possession  of  the  person  of  his  ward,  it  would  appoint  English 
guardians  over  the  property  within  the  jurisdiction.^ 

Section  IY.  The  Duties  of  Guardians. —  The  duties  of  a  guar- 
dian may  be  summed  up  in  the  statement  that  as  to  the  ward's 
property  he  must  be  regarded  as  a  trustee,  while  as  to  his  per- 
son, though  not  technically  a  trustee,  his  relations  are  of  a  con- 
fidential and  fiduciary  nature. 

It  will  be  useful,  in  this  connection,  to  advert  to  the  doctrine 
of  an  infant  becoming  a  "ward  of  the  Court  of  Chancery." 
While  under  the  rule  of  parens  patrice  all  infants  in  the  State  or 

1  Morrell  v.  Dickey,  1  Johns.  Cli.  153  ;  *  Johnstone  v.  Beattie,  10  CI.  &  F.  42, 
McLoskey  v.  Reid,  4  Bradf.  334.  114. 

2  Nugent  V.  Vetzera,  L.  E.  2  Eq.  704  ;  ^  It  is  very  difficult  to  reconcile  this 
Di  Savini  v.  Lousada,  18  W.  R.  425.  case  with  Johnstone  v.  Beattie,  supra. 

3  Dawson  v.  Jay,  3  De  G.  M.  &  G.  764, 
explained  in  Nugent  y.  Vetzera,  supra,  713. 


(a)   West  V.  Smither,  3  Dem.  386.      As   to   ancillary  letters  of  guardianship,    see 
ante,  p.  276. 


GUARDIAN   AND   WAliD.  281 

covmtry  are  under  the  care  of  the  court,  that  care  remains  dor- 
mant unless  it  is  in  some  appropriate  manner  called  into  exer- 
cise.      The    way   in   which   the   aid  of  the    court  is  regularly 
invoked  is  by  commencing  a  suit  called  "filing  a  bill. "     This 
point  is  fully  considered  by  a  number  of  the  judges  in  the  case 
cited  in  the  note.^     The  mere  act  of  "filing  the  bill"  makes 
him  a  ward  of  the  court.     Then  it  becomes  the  direct  duty  of 
the  court  to  provide  for  his  care  and  protection.     As  it  cannot 
do  this  personally,  it  appoints  a  guardian  who  is  an  officer  of 
the  court,  for  the  purpose  of  doing  that  for  the  court  which  the 
court  cannot  do  personally.^     He  is  subject  to  the  order  of  the 
court  much  as  a  parent  or  testamentary  guardian  would  be.     In 
making  the  appointment,  there  is  a  preliminary  inquiry  into  the 
facts  by  a  master   in   chancery,  who  considers  who  are  proper 
persons  to  be  guardians,  and  as  to  what  will  be  a  proper  main- 
tenance for  the  infant,  and  what  scheme  of  education  should  be 
adopted. 3     The  infant,   as  soon  as  the  bill  is  filed,  becomes  a 
"ward  of  the  court,"  whether  guardians  are  appointed  or  not.*  (a) 
One   of  the   consequences   of  this  doctrine  is  that  the  ward 
cannot  be  withdrawn  from  its  jurisdiction  without  its  leave,  (b) 
nor  can  any  person   knowingly  marry  a  female   ward    without 
leave,  without  being  guilty  of  a  contempt  of  court. ^  (c) 

The  American  cases  and  statutes  use  the  same  expression 
"  ward  of  the  court, "  but  the  severe  rules  of  the  English  practice 
do  not  often  seem  to  be  followed  as  to  the  ward  asking  leave 
to  go  out  of  the  jurisdiction.  There  are  but  few  cases  in  this 
country  in  which  it  has  been  decided  that  the  marriage  of  the 
ward,  without  leave,  was  a  contempt  of  court.  A  case  of  this 
general  character  was  decided  in  the  New  York  court  by  Chan- 
cellor Kent^{d) 

The  specific  duties  of  the  guardian  are  in  the  main  these:  — 
(1)  To  make  proper  investments  of  the  ward's  funds.      (2)  To 

1  Johnstone  v.  Beattie,  10  CI.  &  F,  42.  to  go  there  unless  their  guardian  would 

'■i  Id.  p.  85.  enter  into  an  undertaking  that  they  would  \ 

8  Id,  p.  86,  return  within  a  specified  period,  and  would 

*  Id.  p.  91.  not  marry  without  leave  of  court.     10  CI. 

5  Lord  Campbell  mentioned  a  case  of  &  F.  128. 

Jeffreys  v.  Vantiswarts,   where  female  in-  6  Aymar   v.    Ili)ff,    3    Johns.    Ch.   49. 

fants,  wards  of  court,  having   arrived   at  Reference  is  made  in  the  report  to  Eyre  v. 

years  of  discretion,    and  having  property  Countess  of  Shaftsbury,  2  P.  Wms.  Ill, 

and  relatives  in  Dantzic,  were  not  allowed  112. 


(a)  See  also  Simpson,  Law  Relating  to  (c)  See  Bolton  v.  Bolton  [1891],  3  Ch. 

Infants,  Chap.  XL  §  7.  270  ;  In  re  Leigh,  L.  R.  40  Ch.  D^290. 

h)  In  re   Callaghan,  L.  R.  28  Ch.  D.  {d)  See  Ex  parte  Martin,    2  Hill  Eq. 

186.  (S.  C.)  71. 


232  THE   LAW   OF   FEKSOXS. 

account  to  a  court  of  equity.  (3)  To  take  no  position  adverse 
to  his  ward's  interests.  (4)  To  properly  train  hiiu  so  as  to 
make  him  a  useful  citizen. 

(1)  It  is  a  general  rule  that  the  property  of  the  ward  should 
be  kept  in  a  productive  condition.  If  money  is  paid  in  to  the 
guardian,  it  should  be  seasonal)ly  invested  or  he  will  be  person- 
ally charged  with  the  interest.  In  this  respect  he  is  subject  to 
the  rules  usually  applied  to  trustees. 

{'1)  The  guardian  may  account  to  the  court  annually.  The 
object  of  this  form  of  accounting  appears  to  be  to  inform  the 
court  of  the  condition  of  the  ward's  affairs.^  So  he  may  be 
called  on  by  the  ward  to  account.  This  may  be  done  when  the 
ward  attains  majority.^  "When  a  guardian  is  removed,  it  is  a 
matter  of  course  to  call  upon  him  to  account  and  to  pay  over 
amounts  on  hand  to  his  successor.  ^  A  court  of  equity  has 
general  jurisdiction  over  this  subject,  but  statutes  of  course  may 
authorize  an  accounting  before  a  probate  or  other  court,  partic- 
ularly when  the  guardian  is  appointed  there.  This  does  not 
include,  in  Xew  York,  the  representatives  of  a  deceased  guardian, 
who  accoimt  in  equity.*  In  making  up  an  account,  a  guar- 
dian charges  himself  with  what  he  has  received,  and  credits 
himself  with  what  he  has  properly  paid  out.  In  this  he  may 
include  reasonable  amounts  paid  for  legal  services.  He  is  also 
entitled  to  commissions,  which  in  some  States  are  fixed  by  law, 
and  in  others  are  allowed  by  the  court. ^  There  are  statute 
provisions  in  Xew  York  concerning  the  accounting  of  guardians 
appointed  by  the  surrogate.^  These  are  construed  by  the  Court 
of  A[>peals  in  a  recent  case."  The  accounting  by  the  guardian  is 
not  conclusively  binding  until  one  year  after  the  ward  attains 
majority.^  The  meaning  of  the  word  "accounting"  is  techni- 
cal. It  is  a  legal  proceeding  before  a  court.  The  exhibition  of 
his  accounts  out  of  court  by  a  guardian  to  a  ward  is  not  an 
accounting.^  If  a  guardian  on  an  accounting  is  indebted  to  the 
ward,  he  is  not  to  be  regarded  as  a  mere  debtor,  but  rather  as  a 
defaulting  trustee,  and  liable  to  proceeding's  allowable  as  against 
such  a  pei*son.  — e.  ij..  imprisonment. '"^ 

(3)   The   duty  of  the   guardian  not  to   act    adversely  to  his 

1  See  Matter  of   Hawley,   104  N.  Y.  by  law.     Collier  r.   Munn,  41  N.  Y.  143  : 

250  ;  1  Bl.  Com.  463.  Morgan  r.  Hannas,  49  N".  Y.  667. 

*  Seaman  r.  Dunrea,  11  X.  Y.  S-24.  "^  Code  of  Civ.  Pro.  §§  •284'2-'2S50. 

*  Skidmore  r.  I>mes,  10  Paice,  316.  "  Matter  of  Havrley,  ':04  X.  Y.  250. 

*  Farnsworth  r.  Oliphant,  ]  9  Barb.  30.  S  Matter  of  Van  Home,  7  Paige,  46. 

*  In  New  York  the  commissions  are  ^  Kapalje  r.  Hall.  1  Sandf.  Ch.  399. 
fixed  by  statute.    Xo  other  charges  for  &rr-  iJ  Seaman  r.  Duryea,  10  Rorb.  523. 
vices  can  be  made  except  those  allowed 


i 


GUARDIAN   AND   WAKD.  283 

ward's  interests  is  but  a  branch  of  a  wider  topic,  embrac- 
ing all  persons  having  trust  obligations  to  discharge.  There 
are,  however,  some  special  rules  applicable  to  guardians.  In 
dealings  between  trustees  in  general  and  their  beneficiaries  the 
court  exacts  the  utmost  fairness  and  good  faith.  This  rule  is 
applied  in  the  case  of  guardians  until  time  enough  has  elapsed 
for  the  ward  to  become  emancipated  from  the  guardian's  influ- 
ence, notwithstanding  the  ward  has  reached  his  majority,  and, 
theoretically  speaking,  the  relation  between  the  parties  is  at  an 
end.  "Where  undue  advantage  is  taken  by  a  guardian  of  his 
relation  to  the  ward  to  obtain  his  property,  cither  by  deed  or 
will,  it  may  be  regarded  as  a  case  of  "undue  influence,"  leading 
a  court  of  equity  to  set  the  transaction  aside  in  the  same  manner 
as  transactions  in  general  of  the  same  kind  between  trustees 
and  their  beneficiaries.^ 

(4)  It  is  the  duty  of  a  guardian  to  give  a  proper  training  to 
his  ward.  This  means,  in  some  instances,  training  in  habits  of 
industry.  He  ought  not  to  leave  his  ward  in  idleness  when  he 
is  capable  of  earning  his  own  living. 2  He  should,  in  general, 
where  he  has  charge  of  the  ward's  person,  be  regarded  as  stand- 
ing in  the  place  of  a  father,  and  should  give  him  such  an  intel- 
lectual training  as  his  means  and  position  in  life  would  generally 
require,  and  at  the  same  time  attend  to  his  moral  and  religious 
education,  though  this  last  remark  should  be  qualified  by  the 
statement  that  regard  should  be  had  to  the  expressed  wishes  of 
a  deceased  parent  in  conducting  his  religious  training. 

It  may  be  added  that  guardianship  may  be  committed  to  two 
or  more  persons,  who  are  then  termed  joint  guardians.  They 
are  governed  by  the  general  principles  and  rules  applicable  in 
the  case  where  only  one  person  is  guardian. 

1  See  1  Story  on  Eq.  Jur.  324-327  (13th  »  Clark  v.  Clark,  8  Paige,  152. 

ed.) ;  3  Pomeroy  on  Eq.  Jur.  §  1088. 


CHAPTER   VIII. 

INFANCY. 

The  object  of  this  chapter  is  to  bring  together  certain  topics 
in  the  law  of  infancy  which  do  not  involve  the  relation  of  parent 
and  child,  or  that  of  guardian  and  ward.  They  are  questions 
applicable  to  all  infants  as  to  their  capacity  to  contract,  to  com- 
mit wrongs  or  crimes,  or  to  submit  to  pecuniary  burdens,  to 
invoke  the  protection  oE  the  law,  etc.  These  will  be  treated 
simply  from  the  point  of  view  that  the  person  under  considera- 
tion is  an  infant,  and  without  any  inquiry  as  to  the  existence  of 
the  parental  relation  or  of  guardianship. 

Section  I.  Infancy  Considered  as  a  Status.  —  The  capacity 
of  infants  to  do  civil  acts  is  for  the  most  part  fixed  by  positive 
law.  The  rule  requiring  a  prescribed  age  to  be  reached  is  an 
arbitrary  one,  but  at  the  same  time  based  on  mental  ability 
and  experience,  as  shown  in  average  cases.  No  judicial  in- 
quiry will  be  had  upon  the  point  whether  the  particular  per- 
son in  question  was  in  fact  of  sufficient  capacity  to  act  at 
an  earlier  age.  This  arbitrary  rule  is  a  matter  of  status.  The 
age  fixed  by  different  systems  of  law  is  not  the  same,  nor  is 
it  always  the  same  in  a  particular  jurisdiction  for  all  kinds 
of  acts. 

The  rule  in  the  common  law  of  England  fixes  the  age  of 
capacity  to  make  most  contracts  at  twenty-one.  There  is  a 
marked  exception  in  the  case  of  marriage,  where  the  age  of  a 
male  is  fixed  at  fourteen  and  a  female  at  twelve.  Capacity  to 
commit  a  wrong  or  a  crime  is  not  governed  by  the  rule  appli- 
cable to  contracts.  The  requisite  age  in  these  cases  will  be 
referred  to  hereafter. 

A  person  legally  reaches  in  law  the  age  of  twenty-one  the  day 
before  the  twenty-first  anniversary  of  his  birth.  This  rule  is 
based  on  the  proposition  that  the  law  does  not  regard  a  fraction 
of  a  day.  This  is  not  an  unvarying  rule,  since  fractions  of  a  day 
are  for  some  purposes  carefully  distinguished,  but  it  applies  to 


INFANCY,  285 

the  present  case.^     This  rule  seems  to  have  been  derived  from 
the  Roman  law.^ 

Questions  of  the  conflict  of  laws  arise  when  an  infant,  beino- 
domiciled  in  one  State,  makes  a  contract,  will,  or  other  instru'^ 
ment  in  another,  and  the  rule  for  capacity  is  different  in  the 
respective  States.  The  case  of  most  difficulty  occurs  in  the  law 
of  contracts.  One  opinion  is  that  capacity  in  such  a  case  is  to 
be  determined  by  the  law  of  the  place  where  the  contract  is  made. 
Thus,  if  a  person,  being  domiciled  in  New  York,  where  the  age  of 
capacity  is  twenty-one,  is  temporarily  in  Vermont,  where  the 
age  is  eighteen,  a  contract  made  at  that  age  in  the  latter  State 
will,  on  this  theory,  be  ])inding  on  him,  not  only  there,  but  in 
the  New  York  courts.^ 

The  capacity  to  make  a  will  of  personal  property  depends  on 
the  law  of  the  testator's  domicile,  while  that  of  a  will  of  real 
estate  or  a  conveyance  of  it  is  governed  by  the  law  of  the  place 
where  the  land  is  situated. 

An  opposing  view  of  much  weight  is  that  the  capacity  of  an 
infant  to  enter  into  a  contract  is  governed  by  the  law  of  his 
domicile,  and  that  if  he  had  not  sufficient  capacity  there,  a  con- 
tract made  elsewhere,  where  he  temporarily  happened  to  be, 
would  be  void,  even  though  the  law  of  such  State  sustained  his 
capacity.*  It  has  been  also  decided  that  even  if  his  capacity  is 
governed  by  the  law  of  the  place  where  the  contract  is  made,  he 
cannot,  while  remaining  in  his  domicile,  authorize  an  agent  in  a 
State  where  he  would  have  capacity,  if  he  were  himself  there, 
to  make  a  binding  contract.^ 

1  The  principle  seems  to  be  that  where  Late  cases  in  common  law  are  Bardwell  v. 
there  are  no  conflicting  rights,  fractions  of  Purrington,  107  Mass.  419  ;  Phelan  v. 
a  day  should  not  be  noticed  ;  if  there  is  Douglass,  11  How.  Pr.  193 ;  see  Metcalf 
such  a  conflict,  then  the  smallest  diff"er-  on  Contracts,  38. 

ences  of  time  will  be  regarded  to  prevent         3  There  is,  however,  but  little  decision 

injustice.     Cases  on  this  subject  are  col-  to  this  effect.    See  Thompson  v.  Ketcham, 

lected  in  23  Am.  Law  Register,  n.  s.  254-  8  Johns.   189.     Male  v.   Roberts,  3  Esp. 

259.  163,  may  be  noted.     Mr.  Dicey  expresses 

2  "  In  the  Roman  law  the  computation  some  doubt  as  to  the  correctness  of  this 
oftime  is  by  moments,  or  there  is  civil  com-  decision.  Dicey  on  Domicil,  177. 
putation.  In  the  latter,  regard  is  had  to  *  Sottomayor  v.  De  Barros,  L.  R.  3  P. 
the  calendar  day  on  which  the  event  occurs  D.  1,  5;  and  see  Mette  i'.  Mette,  1  Sw.  «ScT. 
with  which  the  computation  of  time  com-  416  ;  Remarks  of  Judges  in  the  House  of 
mences.  This  calendar  day  is  wholly  in-  Lords  in  Cooper  v.  Cooper,  L.  R.  13  App. 
eluded  in  the  time  to  be  computed.      So  Gas.  88,  pp.  99-108. 

that  in  the  subsequent  year  in  which  it  &  Kohne's  Estate,  1  Parson's  Select  Eq. 

expires  the  day  preceding  the  correspond-  Cases  (Penn.),  399.     One  who  has  not  ca- 

ing  calendar  day  is  regarded  as  the  last,  pacity  to  contract  cannot,  by  making  an 

Thus,  a  person  born  on  January  1st,  1863,  agreement  to  perform  a  contract  in  a  place 

completes  the  fourteenth  year  of  his  life  where  he  would  have  capacity,  bind  hini- 

after  midnight  of  Dec.  30,  1876."     Mac-  self.      Cooper  v.  Cooper,  L.  R.  13  App. 

keldey's  Roman  Law  (Dropsie's  ed.),  163.  Cas.  pp.  99,  106,  108. 


236  THE   LAW   OF    PERSONS. 

Capacity  to  make  a  will  of  personal  property  depends  on  the 
law  of  the  infant's  domicile,  while  real  estate  can  only  be  dis- 
posed of  by  will,  if  in  accordance  with  the  law  of  the  place 
where  it  is  situated. 

Section  II.  The  Capacity  of  Infants  to  make  Contracts. — 
I.  G-eneral  rule.  —  There  has  been  much  uncertainty  of  expres- 
sion, and  even  variety  of  opinion,  in  the  decisions  as  to  whether  the 
contract  of  an  infant  is  in  general  voidable  or  void. 

This  is  a  highly  important  inquiry.  If  the  contract  be  void.,  it 
is  a  mere  nullity.  It  does  not  bind  the  opposite  party,  being  an 
adult,  though  the  infant  desire  to  maintain  it,  and  it  is  incapable 
of  ratification  by  him.  On  the  other  hand,  if  voidable^  it  is  bind- 
ing on  the  adult,  if  the  infant  so  elect,  and  may,  under  circum- 
stances to  be  hereafter  stated,  be  confirmed  by  him,  so  as  to 
make  it  binding  upon  himself. 

The  prevailing  opinion  now  is,  that  nearly  every  contract  made 
by  an  infant  is  voidable,  rather  than  void.  There  may  be  a  few 
exceptions,  but  these  are  not  as  yet  very  well  defined. 

The  rule  that  an  infant's  contract,  except  for  necessaries,  etc.,  is 
voidable,  extends  both  to  executed  and  executory  contracts,  —  such 
as  conveyances  or  purchases  of  land,  leases,  sales,  and  purchases  of 
personal  property,  credits  of  all  kinds,  mortgages,  contracts  of  ser- 
vice, partnerships,  trading  in  general,  etc.  Each  and  all  of  these 
may  in  general  be  repudiated,  and,  under  proper  circumstances, 
may  be  confirmed.  The  effect  of  this  principle  cannot  be  avoided 
by  any  indirect  methods.^  {a)  It  has  often  been  attempted  where 
an  infant  has  committed  a  fraud  in  making  a  contract,  or  per- 
haps an  act  of  negligence,  to  hold  him  liable  on  the  ground  that 
he  has  committed  a  tort  or  wrong,  and  that  he  is  not  excused 
from  that.  This,  however,  is  but  an  indirect  way  of  making  him 
liable  upon  a  contract.  It  is  quite  plain  that  if  he  had  become 
an  innkeeper,  and  then  lost  the  goods  of  a  guest  through  negli- 
gence, he  would  not  be  liable  for  the  loss,  since  the  negligence  is 
but  a  mode  of  carrying  out  the  business  of  keeping  an  inn, — a 
business  which  he  cannot  bind  himself  to  carry  on  properly.  So 
a  fraud  in  making  a  contract  is  but  an  element  in  the  contract ; 
and  if  he  has  no  binding  power  to  make  the  principal  thing,  it  is 
difficult  to  see  how  he  is  bound  by  a  specific  act  which  forms  a 
part  of  it.2  (5)     One  who  sues  for  the  fraud  affirms  that  it  was 

1  An  infant  is  not  estopped  by  his  de-  2  gge,  on  the  general  subject,  Studwell 

clarations   that   he   is   of  age.      Sims   v.  v.    Shapter,    54  N.  Y.    249  ;  Merriam  v. 

Everhardt,    102   U.    S.   300  ;    Conrad   v.  Cuningham,  11  Gush.  40  ;  Burley  v.  Rus- 

Lane,   26    Minn.    389.       But    see    post,  sell,  10  N.  H.  184  ;  Gilson  v.  Spear,  38  Vt. 

p.  287,  311. 

{a)  Nash  v.  Jewett,  4  L.  R.  A.  561  ;  (6)"  Stern  v.  Meikleham,  56  Hun,  475, 
Ladlcy  V.  IleuneJy,  37  N.  Y.  St.  R.  612.    • 


INFANCY.  287 

made  in  the  course  of  a  contract,  when  there  is  no  contract. 
The  logical  position  in  such  a  case  is  for  the  other  party  to  dis- 
affirm the  contract,  to  insist  that  owing  to  the  fraud  there  is  no 
contract,  and  then  reclaim  from  the  infant  what  he  has  received 
under  it.  The  authorities,  however,  are  not  in  accord  upon  the 
subject.     Reference  is  made  to  them  in  the  note.^ 

There  are  cases  in  courts  of  equity  which  decide  that  if  an  in- 
fant in  the  course  of  making  a  contract  affirms  that  he  is  of  age, 
he  shall  be  precluded  from  denying  such  affirmation  to  the  preju- 
dice of  the  other  party  who  relied  upon  his  statement.  These 
cases  are  anomalous  and  contrary  to  principle,  and  only  to  be 
followed  because  they  are  decided  and  have  become  precedents.^ 
The  fallacy  in  these  decisions  is  that  they  proceed  upon  the 
theory  of  an  affirmance  instead  of  a  disaffirmance  of  the  contract, 
and  upon  the  ground  that  the  court  will  not  permit  an  infant 
"to  take  advantage  of  his  own  fraud"  and  will  hold  him  to  his 
representations.^ 

II.  An  infant'' s  capacity  to  contract  for  necessaries.  —  By  the 
term  "  necessaries  "  is  meant  all  that  class  of  objects  which  are 
essential  to  the  comfort,  health,  or  training  of  the  infant,  as  de- 
termined by  the  courts.  The  items  would  embrace  food,  clothing, 
shelter,  medical  treatment  and  medicine,  and  education.  These 
are  in  a  general  way  needed  by  all  infants  ;  great  variety  in  the 
kind  and  quality  of  these  "  necessaries  "  will  be  recognized  by  the 
courts,  depending  upon  the  social  position  of  the  infant,  or  on 
other  special  ground.  It  thus  becomes  requisite  to  ascertain  in 
the  trial  of  such  a  question  the  functions  of  a  jury  as  distin- 
guished from  those  of  the  judge.  The  rule  is  that  the  classes 
of  things  necessary  for  an  infant  will  be  determined  by  the 
judge,  while  the  question  whether  the  particular  person  before 
the  court  needed  the  goods  purchased  by  him  is  for  the  jury. 
Tlie  judge  in  discharging  his  duty  may  come  to  the  conclusion 
that  the  goods  are  presumptively  not  necessaries.     An  example 

1  Among  those  which  favor  the  posi-  contrary  view  are  collected  in  Eckstein  v. 

tion  taken  in  the  text  are  Bartlett  v.  Wells,  Frank,  1  Daly,  334. 
1  B.  &  S.  836  ;  Wright  v.  Leonard,  11  C.  2  g^e    Vaughan    v.    Vanderstegen,    2 

B.  N.  s.  258  ;   Price  v.  Hewett,  8  Exch.  Drewry,   363,  379  ;  Clarke  v.   Cobley,  2< 

146;    De  Eoo  v.  Foster,   12  C.  B.   N.  s.  Cox  Eq.  173  ;  Esron  v.  ^'icholas,  1  DeG. 

272.     It  is  suggested  in  some  of  the  cases  &  S.  118;  Savage  v    Foster,  9  Mod.  35; 

that  a  court  of  equity  would  grant  relief  In  re  King,  3  De  G.  &  J.  63.      iluch  dis- 

in    some    instances  ;    but    only    on    the  satisfaction  was  expressed  with  the  rule  in 

ground  of  the  fraud,   and  not  upon   the  this  last  case,  by  Lord  Justice  Turner. 

contract.      See  Bartlett  v.  ^cWs,  supra;  lb.,  p.  69. 

Heath   v.    Mahouey,    7   Hun,    100;    and  ^  Pollock  on  Contracts  (1st  Eng.  ed.), 

Hewitt  V.  Warren,    10  Hun,  560,  are  to  56,  and  cases  cited, 
the  same  effect.      The  cases  holding  the 


2S8  THE   LAW   OF    PERSONS. 

is  a  bill  for  cigars.  So  if  goods  belong  to  a  class  usually  neces- 
sary, but  are  so  costly  and  extravagant  as  to  be  beyond  any 
ordinary  range  of  expenditure,  they  will  be  presumptively  not 
necessaries.  The  effect  of  such  a  view  would  be  that  the  seller 
would  be  required  to  give  affirmative  evidence  that  they  were  in 
the  particular  instances  necessary.  If  he  did  not  do  this,  the  case 
would  not  reach  the  jury,  but  would  be  dismissed.^ 

A  few  additional  instances  of  goods  presumptively  not  necessa- 
ries are  given,  —  dinners  to  friends,  confectionery ,2  ices,  game,  a 
chronometer,  even  for  a  lieutenant  in  the  navy,^  betting-books,* 
a  horse  used  as  a  hunter.^  Affirmative  proof  might  make  these 
or  similar  articles  necessaries.  Thus,  the  purchase  of  a  horse, 
apparently  not  necessary,  might  be  made  so  by  proof  that  exer- 
cise on  horseback  was  needful  to  the  purchaser's  health.^  In  the 
same  way,  if  the  infant  holds  a  place  or  post  which  usually  re- 
quires a  certain  line  of  expenditure,  he  may  be  liable  up  to  the 
usage.  Thus  an  infant  captain  in  the  army  might  be  liable  for 
a  livery  for  his  servant,  though  not  for  cockades  ordered  for  the 
soldiers  of  his  company.'''  The  same  principle  has  been  applied  in 
England  to  the  expenses  of  preparing  a  marriage  settlement.^  (a) 

Moreover,  goods  may  be  necessary  in  point  of  style  and  qual- 
ity, and  yet  unnecessary  in  quantity.  If  four  coats  per  annum 
were  necessary,  and  the  infant  purchased  ten,  he  would  not  be 
liable  for  the  superfluous  six.  The  tradesman  is  bound  at  his 
peril  to  ascertain  whether  he  has  more  than  he  needs,^  and  it 
will  be  immaterial  whether  he  has  paid  for  those  that  he  first 
acquired  or  not.  It  has,  however,  been  held  that  the  necessity 
for  inquiry  on  the  part  of  the  tradesman  may  be  dispensed  with 
by  the  conduct  of  the  parties.^*^ 

1  Ryder  v.  Wombwell,   L.  R.  4  Excli.         2  Wharton  v.  Mackenzie,  5  Q.  B.  606  ; 

32,  reversing   L.    R.    3   Exch.  90.      The  Brooker  v.  Scott,  11  M.  &  W.  67. 
infant,    a    young    man    of   wealth,    pur-  ^  Berolles  v.  Rarnsay,  Holt,  77. 

chased  on  credit  at  a  high  price  a  pair  of  *  Jenner   v.   Walker,    19    L.    T.    N.  s. 

shirt-sleeve   studs,    composed   of  crystals  398. 

adorned  with  diamonds  and  rubies,  and  a         ^  Skrine  v.   Gordon,   9  Ir.    R.   (C.  L.) 

silver  goblet  for  presentation  to  a  friend.  479. 

No  evidence  having  been  offered  to  show  ^  Hart  v.  Prater,  1  Jur.  623. 

why  it  was  exceptionally  necessary  for  the  '  Hands  v.  Slaney,  8  Term  R.  578. 

infant  to  have  these  articles,  the  appellate  8  Helps   v.    Clayton,    17   C.   B.    x.    s. 

court  held  that  the  case  should  have  been  553.     See  also  Hill  v.  Arbon,  34  L.  T.  n. 

dismissed.     This  case  has  had  much  influ-  s.  125. 

ence  in  other  branches  of  the  law  in  draw-  ^  Mortara  v.  Hall,   6  Sim.   465;  Bur- 

ing  the  line  between  the  functions  of  the  gliart  v.  Angerstein,  6  C.  &  P.  690. 
jury  and  of  the  judge.  lo  Dalton  v.  Gib,  5  Bing.  N.  C.  198. 


(a)  An  infant  is  liable  for  the  amount  Walter  v.  Everard  [1891],  2  Q.  B.  369  : 
of  a  premium  which,  as  an  apprentice,  he  De  Francesco  v.  Barnum,  L.  K.  45  Ch.  D. 
agreed  to  pay  his  master  for  instruction.     430. 


INFANCY.  289 

No  particular  form  of  contracting  is  necessary.  The  infant 
may  be  bound  on  an  implied  contract  and  without  express  words.^ 
So  he  may  become  indirectly  liable,  —  as,  for  example,  to  a  person 
who  at  his  request  paid  the  creditor  who  supplied  him  with 
necessaries.  Should  he  borrow  money  wherewith  to  buy  necessa- 
ries and  not  use  it  for  this  purpose,  he  would  not  be  liable  to  the 
lender ;  but  if  he  did  so  use  it,  the  lender  would  be  allowed  by  a 
court  of  equity  to  stand  in  the  place  of  the  seller  and  to  collect 
an  amount  equal  to  the  reasonable  value  of  the  necessaries  pur- 
chased with  the  money  lent.^  (a)  Still,  if  he  gave  the  lender  a  deed 
to  secure  his  advances,  the  deed  might  not  be  sustained.^ 

The  term  "  necessaries "  includes  the  support  of  an  infant's 
wife  and  children.^  The  liability  of  the  infant  may  turn  upon  the 
question  to  whom  the  tradesman  gives  credit.  The  infant  may 
receive  the  goods,  and  yet  the  contract  not  be  made  with  him. 
Thus,  if  the  credit  were  expressly  given  to  a  stranger,  no  implica- 
tion would  arise  of  liability  on  the  infant's  part.^ 

The  law  does  not  bind  the  infant  to  pay  the  price  which  the 
tradesman  may  set  upon  the  goods,  nor  even  the  price  which  he 
may  have  agreed  to  pay.  It  is  always  an  open  question  as  to 
the  real  value  of  the  goods  supplied,  on  the  infant's  part,  though 
the  tradesman,  being  an  adult,  is  bound  by  the  price  which  he  has 
fixed.  It  will  not  change  the  case  though  the  iufant  give  his  note 
or  bond.^  (h)  It  is  a  question  of  capacity^  and  he  has  no  capacity 
to  make  general  contracts,  but  only  to  acquire  the  necessaries  of 
life  at  their  real  value. 

If  the  contract  be  valid,  the  infant  is  bound  in  the  same  way  as 
an  adult.  A  judgment  against  him  will  not  only  bind  his  present 
but  future  acquisitions.  It  would  seem  to  follow  that  he  might 
be  liable  for  a  fraud  in  making  such  a  contract,  as  he  has  the 
capacity  to  make  the  contract  itself. '*' 

III.  Ratification  hy  an  infant  of  voidable  contracts.  —  Assuming 
that  the  contract  of  an  infant  is  voidable  and  not  void,  the  sub- 

1  Gay,v.  Ballou,  4  Wend.  403.  *  Chappie  v.  Cooper,  13  M.&W.  252. 

2  Marlow  v.  Pitfeild,  1  P.  AVms.  558.  ^  Dimcomb  v.  Tickridge,  Aleyn,    94  ; 

3  Martin  v.  Gale,  L.  R.  4  Ch.  D.  428.  Sinklear  y.  Emert,  18  111.  63;  Ellicott  v. 
The  validity  of  the  deed  in  such  a  case  Peterson,  4  Md.  476. 

could  not  be  placed  upon  the  ground  that  ^  Johnson  v.  Boyfield,  1  "Ves.  Jr.  314  ; 

it  was  for  the  benefit  of  the  infant  to  have  Clarke  v.  Cobley,  2  Cox  Eq.  173  ;  Martin 

the  necessaries.      In  the  case  above  cited  v.  Gale,  L.  R.  4  Ch.  Div.  42S. 

the  decisions  are  criticised  which  seem  to  ^  It  is  not  known  that  any  case  has  de- 

inaintain  that  a  contract  for  the  infant's  cided  this  proposition,  though   it   seems 

benefit  is  regularly  binding  on  him.    Mar-  reasonable. 

tin  V.  Gale,  sujira,  pp.  430,  431. 


ia)  Kilgore  v.  Rich,  83  Me.  305.  (h)  In  re  Soltykoff  [1891],  1  Q.  B.  413. 

19 


OQQ  THE   LAW   OF   PERSONS. 

ject  of  ratification  becomes  one  of  great  consequence.  If  the 
contract  is  properly  ratified,  it  will  be  binding  on  both  parties. 
The  only  question  open  to  discussion  is,  what  will  amount  to  a 
ratification.  The  clearest  way  of  discussing  this  subject  is,  to 
treat  the  various  cases  which  may  arise,  and  which  will  admit 
to  some  extent  of  different  considerations,  separately. 

(1)  Conveyances  of  real  estate.  —  The  law  in  this  respect  is 
quite  strict.  At  the  common  law,  there  were  two  classes  of  convey- 
ances to  be  noted  in  this  connection.  One  class  assumed  a  judi- 
cial form,  such  as  fines  and  recoveries.  In  this  case,  if  an  infant 
came  into  court  and  admitted  that  the  title  w^as  in  another,  he 
was  bound  by  the  judgment  entered  against  him  accordingly, 
which  could  only  be  reversed  by  writ  of  error  for  error  in  fact. 
This  could  not  be  tried  by  the  jury,  but  only  by  the  court.  The 
infant  was  obliged  to  appear  in  person  to  be  tried  by  the  inspec- 
tion of  the  judges.     This  could  only  be  done  during  infancy. 

On  the  other  hand,  in  the  ordinary  case  where  the  conveyance 
was  made  out  of  court,  the  infant  might  enter  upon  the  land  in 
spite  of  his  conveyance  during  infancy,  but  could  bring  no  action 
to  recover  the  land  itself  as  his  own  until  after  he  came  of  age. 
The  reason  of  this  was,  that  he  had  an  election  during  the  whole 
of  his  infancy  to  affirm  or  disaffirm  the  transaction.  If  he 
brought  an  action  to  disaffirm  during  infancy  and  was  successful, 
the  judgment  would  be  binding  upon  him,  and  thus  shorten  the 
period  of  election  which  the  law  would  otherwise  give  him.^  As 
fines  and  recoveries  have  disappeared  from  the  law,  an  infant  who 
has  conveyed  may  now  enter  upon  his  land  to  receive  the  profits 
during  minority,  but  can  bring  no  action  to  divest  the  title  until 
he  is  of  age.  Before  bringing  his  action,  he  must  do  some  proper 
act  showing  his  disaffirmance  of  tlie  conveyance,  —  such  as  mak- 
ing entry  upon  the  land,  giving  notice,  executing  a  deed  to  some 
other  person,  etc.^  (a)  A  conveyance  to  another  would  be  proper 
when  the  first  grantee  is  not  in  possession  claiming  title.^ 

One  of  the  consequences  of  these  principles  is  that  mere  inaction 
on  the  infant's  part  after  he  attains  majority,  is  not  evidence  of 
ratification.*  (5)     Accordingly,  his  grantee  would  not  under  such 

1  Per  Lord  Mansfield,  in  Zouch  v.  ^  Jackson  v.  Carpenter,  11  Johns.  539  ; 
Parsons,  3  Burr.  1794,  1808.  Dawson  v.  Helmes,  30  Minn.  107. 

2  Allen  V.  Allen,  2  Drury  &  Warren,  «  Irvine  v.  Irvine,  9  Wall.  617;  Welch 
107.  There  are  many  decisions  to  this  v.  Bnnce,  83  Ind.  382  ;  Thomas  v.  Pullis, 
effect  in  New  York  and  other  States,  col-  56  Mo.  211  ;  Huth  v.  Carondelet  Marine 
lected  in  Bool  v.  Mix,  17  Wend.  119.  Ry.  Co.,  Id.  202. 


(a)  See,  however,  Craig  v.  Van  Bebber,  {b)  Hill  v.  Nelrns,  86  Ala.  442. 

100  Mo.  584. 


INFANCY.  291 

circumstances  obtain  a  perfect  title  until,  say,  twenty  years  after 
the  infant  reaches  majority.  The  reasoning  upon  this  point  is, 
that  the  infant's  cause  of  action  is  not  finally  fixed  until  majority, 
and  then  he  has  the  period  allowed  by  the  statute  of  limitations 
in  which  to  bring  his  actions,  which  is  in  most  States  twenty 
years,^  but  in  some  much  less,  as  in  Nebraska.^  (a)  This  rule 
prevails  in  the  English  courts.^  Should  the  infant  die  during  in- 
fancy, the  right  to  disaffirm  would  be  transmitted  to  his  heirs. 
The  same  general  rules  apply  to  leases  of  land  made  by  an  infant.* 
In  either  of  the  cases  discussed,  he  may  after  majority  ratify  the 
transaction  by  affirmative  acts,  —  e.  (/.,  by  executing  a  confirmatory 
deed,^  or  in  case  of  a  lease,  by  receiving  rent  after  majority.*' 

(2)  Purchases  and  leases  of  real  estate.  —  A  new  element  is 
found  in  this  case,  for  the  infant  has  the  benefit  of  the  transac- 
tion, particularly  if  he  is  in  possession.  The  enjoyment  of  the 
property  is  an  implied  ratification.  The  rule  accordingly  is,  that 
he  shall  have  a  reasonable  time  in  which  to  disaffirm.  When 
that  time  elapses,  ratification  will  be  presumed." 

(3)  Sales,  mortgages,  a7id  purchases  of  personal  property,  and 
other  contracts  having  in  them  the  element  of  mutuality.  —  The 
technical  rule  prevailing  in  the  law  of  real  estate,  that  the  infant 
cannot  rescind  until  majority,  is  not  followed  in  this  class  of  cases. 
He  may  rescind  during  minority,  as  well  as  after  he  becomes  of  age.^ 

A  great  variety  of  cases  arises  where  there  are  in  a  contract 
mutual  engagements  and  stipulations  entered  into  between  infants 
and  adults,  in  which  the  question  of  ratification  might  be  presented 
owing  to  the  acts  of  the  infant  after  majority,  or  perhaps  owing 
to  mutual  acts.  If,  for  example,  an  infant  after  majority,  should 
continue  to  receive  benefits  under  a  contract  which  was  in  the 
outset  voidable  by  reason  of  his  incapacity,  it  would  seem  that 
ratification  should  be  presumed  after  the  lapse  of  a  reasonable 
time.  It  is  the  new  and  affirmative  act  which  leads  to  the  inference 
of  ratification.  This  theory  might  be  applied  to  a  marriage  settle- 
ment in  which  there  were  mutual  promises  as  between  the  settlor 

1  See  cases  supra;  also  Voorhies  v.  *  Slator  v.  Brady,  14  Ir.  C.  L.  61  ; 
Voorhies,  24  Barb.  150 ;  Urban  v.  Grimes,  Slator  v.  Trimble,  Id.  342.  He  caunot 
2  Grant's  Cases  (Pa.),  96  ;  Prout  v.  Wiley,     ayoid  the  lease  until  majority. 

28  Mich.  164  ;  Green  v.  Green,  69  N.  Y.  8  story  v.  Johnson,  2  Y.       Colly.  586. 

553.  6  Smith  v.  Low,  1  Atk.  489. 

2  O'Brien  v.  Gaslin,  20  Neb.  347.  ''  Hookr.  Donaldson,  9  Lea,  56  ;  Henry 

3  Thomas  v.  Thomas,  2  Kay  &  J.  79.  v.  Root,  33  N.  Y.  526. 

But  see  remarks  of  court  in  Beardsley  v.  ^  Towle  v.  Dresser,  73  Me.  252. 

Hotchkiss,  96  N.  Y.  201,  211. 


{a)  See  Searcy  v.  Hunter,  81  Tex.  644  ;  Ihley  v.  Padgett,  27  S.  C.  300. 


292  THE   LAW    OF   PEKSONS. 

and  the  beneficiary .^  So  if  he  applied  for  shares  in  a  stock  com- 
pany during  infancy,  and  sold  them  after  majority  (even  though 
the  sale  were  for  the  purpose  of  avoiding  liability)  he  would  be 
held  to  have  ratified  his  purchase.^ 

(4)  Ratification  of  indebtedness  and  of  promises  to  pay  money 
incurred  and  made  during  infancy.  —  This  subject  branches  out 
into  much  detail.  The  whole  consideration  which  the  infant 
received  for  his  promise  may  have  been  expended  during  minority, 
or  it  may  have  been  useless  to  him,  or  perhaps  detrimental. 
"Whether  this  were  true  or  not,  his  promise  to  pay  was  voidable, 
and  could  not  have  been  enforced  against  him  had  he  claimed  in 
proper  form  his  disability.  The  question  then  is,  what  is  the 
effect  of  the  new  promise. 

Still  he  does  not  appear  to  be  legally  hound  to  rescind  until  he 
attains  majority.  Accordingly,  if  he  should  wait  until  that  event 
happened,  he  would  have  a  reasonable  time  ^  before  acquiescence 
could  be  inferred  from  mere  inaction.  It  would  seem  that  mere 
acquiescence,  unattended  by  circumstances  arising  after  majority, 
from  which  ratification  could  be  inferred,  would  not  be  enough 
until  the  statute  of  limitations  operated  in  favor  of  a  vendee  as  a 
bar  to  an  action  by  the  infant.  It  has  been  held  that  the  reten- 
tion of  the  consideration  for  which  a  note  has  been  given,  after 
the  infant  comes  of  age,  is  not  a  ratification  of  the  note.* 

The  following  points  should  here  be  separately  noticed. 

1.  Is  it  necessary  that  the  infant,  when  he  makes  the  new 
promise,  should  know  that  the  former  one  is  invalid  in  law  f  As 
to  this  point,  there  is  much  conflict  in  the  decisions.  It  was  stated 
in  an  early  English  case  that  such  knowledge  on  the  infant's  part 
is  necessary,^  and  this  has  been  followed  by  a  number  of  American 
courts.^  Other  courts  have  decided  that,  as  an  adult,  he  is  hound 
to  know  the  law,  and  it  is  accordingly  immaterial  whether  he 
knew  it  in  fact  or  nof 

In  this  diversity  of  view,  the  better  opinion  would  seem  to  be 
that  the  party  promising  should  know  that  he  was  discharged. 
The  promise  is  not  unfrequently  made  immediately  after  he  bo- 

1  In  re   Smith,   38   L.  T.  N.  s.  466  ;  Norris  v.  Vance,    3  Rich.    (S.    C.)    16i  ; 

Cornwall  v.  Hawkins,  41  L.  J.  (Ch.)  435.  Turner  v.  Gaither,  83  N.  C.  357. 

-Ex    parte   Ebbetts,    39   L.  J.    (Ch.)  ^  Morse  v.  Wheeler,  4  Allen,  570  ;  Ring 

158.  V.  Jamison,  66  Mo.  424  ;  Ring  v.  Jamison, 

3  Chapin  v.  Shafer,  49  N.  Y.  407.  2    Mo.  App.  584,  and  semhle,   Cheshire  v. 

4  Benham  v.  Bishop,  9  Conn.  330;  Barrett,  4  McCord  (S.  C),  241.  But  see 
Catlin  V.  Haddox,  49  Conn.  492.  Baker  v.  Disbrow,  3  Redf.  348  ;  on  appeal, 

5  Harmer  v.  Killing,  5  Rsp.  102.  18  Hun,  29,  and  79  N.  Y.  631.    This  was  a 
^  Petty  V.  Roberts,  7  Bush  (Ky.),  410  ;     case  oi  cestui  que  trust,  and  trustee.     See  on 

Curtin  v.  Patten,  11  Serg.  &  R.  305  ;  that  point,  Adair  v.  Brimmer,  74  N.  Y. 
Hinely    v.    Margaritz,    3    Pa.    St.    428  ;     539,  554. 


INFANCY.  293 

comes  of  age,  before  he  has  acquired  any  knowledge  of  legal  rules. 
He  is  readily  entrapped  into  promises,  which  he  would  not  have 
made  with  maturer  judgment,  to  pay  for  a  consideration  which 
ought  never  to  have  been  supplied  to  him.  The  lessons  of  experi- 
ence show  that  the  safeguards  attending  these  promises  should 
be  strengthened  rather  than  weakened. 

2.  The  promise  should  be  direct  and  unequivocal.  It  must  be 
made  to  the  creditor  or  his  agcnt,^  and  should  at  least  be  an  ex- 
plicit admission  of  an  existing  liability.^  Some  of  the  cases  cited 
require  an  express  promise.  The  action  may  be  brought  on  the 
old  promise,^  though  it  is  held  in  some  cases  that  it  may  be  brought 
on  the  new  one,  using  the  old  as  a  consideration. 

3.  It  must  be  accepted  by  the  creditor  with  any  qualifications 
made  by  the  promisor.  Thus  if  he  make  a  conditional  promise, 
—  e.  </.,  "  to  pay  when  he  is  able,"  —  the  creditor  cannot  enforce 
it  without  proving  his  ability.* 

4.  A  promise  made  by  another  in  his  name,  and  without 
authority,  may  be  ratified  after  majority  so  as  to  make  him  liable.^ 

5.  The  infant  should  know  all  the  facts  which  are  material  to 
the  ratification,  so  that  he  can  fairly  judge  whether  it  is  prudent 
to  make  it.^ 

Whatever  restrictions  have  been  placed  upon  the  new  promise 
have  been  found,  in  the  opinion  of  many  jurists,  insufficient  to  pro- 
tect the  infant  from  rash  and  unguarded  promises  after  majority. 
Statutes  on  this  basis  have  been  enacted  in  England  and  adopted 
in  several  of  the  American  States,  requiring  the  ratifying  promise 
to  be  in  writing."  (a) 

1  Bigelow  V.  Grannis,  2  Hill,  120.  ^  9  Oeo.  IV.  c.  14,  §  .5,  known  as  Lord 

2  Goodsell  V.  Myers,  3  Wend.  479  ;  Tenterden's  Act ;  see  in  Maine,  Public 
Proctor  V.  Sears,  4  Allen,  95;  Wilcox  v.  Laws  of  1845,  ch.  166,  construed  in 
Roath,  12  Conn.  550  ;  Millard  y.  Hewlett,  Thurlow  v.  Gilraore,  40  Me.  378  ;  Gen. 
19  Wend.  301  ;  Edgerly  w.Sliaw,  25  N.  H.  Stats,  of  Kentucky,  ch.  22,  §  1,  construed 
514-  in    Stern    v.    Freeman,   4    Metcalfe,    309. 

3  Whitney  v.  Dutch,  14  Mass.  457,  The  statute  9  Geo.  IV.  c.  14,  §  5  is 
461  ;  Jackson  w.  Mayo,  11  Mass.  147.  now   repealed    in    England.      The    exist- 

*  Everson  v.  Carpenter,  17  Wend.  419;  ing  law  there  makes  contracts  of  infants 

Proctor  V.  Sears,  4  Allen,  95.  which  were  formerly  voidal)le   absolutely 

s  Ward  V.  Steamboat  "  Little  Red,"  8  void,  and  for  the  most   part  rejects   the 

Mo.  358  ;  Hall  v.  Jones,  21  Md.  439.  doctrine    of    ratification.       See  37   &   38 

6  Kay  y.  Smith,  21  Beav.  522.     This  is  Vict.    62    (1874),    called    "The    Infants' 

an  instructive  case.  Relief  Act."    There  are  not  many  decisions 

(«)  As  to  the  Infants'  Ptelief  Act,  1874,  ham  v.  Murd}^  60  L.  T.  R.  956.  Where  the 

see  Smith  v.  King  [1892],  2  Q.  B.  543.  contract  is  partly  executed,  and  the  infant 

There  is  a  tendency  in  several  cases  to  has  received  a  benefit  thereby  which  he  is 

place  a  strict  construction  upon  this  statute  unable  to  return,  he  cannot  recover  under 

and  to  exclude  from  its  operation  contracts  this  statute  money  paid  by  him  to  tiie  de- 

not  therein  specifically  mentioned.  Duncan  fendnnt.     Valentini  i;.  Canali,  L.  R,  24  Q. 

•c.  Dixon,  L.  R.  44  Ch.  D.  211;  Whitting-  B.  D.  166. 


204  THE  LAW   OF  PEESONS. 

IV.  Disaffirmance  of  a  contract  during  infancy  or  aftencard,i. 
—  Assuming  that  an  infant's  contract  is  voidable,  he  has  the 
power  to  disaffirm  it  during  infancy  (in  most  cases),  or  within  a 
reasonable  time  afterwards.  He  would  in  some  cases  proceed 
affirmatively,  by  setting  aside  or  repudiating  the  contract ;  at  other 
times  he  would  wait  until  he  was  sued,  and  use  the  fact  of  infancy 
as  a  defence.  At  this  point  a  rule  becomes  applicable,  to  the 
effect  that  he  must  return  the  consideration  which  he  received 
from  the  other  party  to  the  contract,  for  "  infancy  is  to  be  used 
as  a  shield  and  not  as  a  sword."  The  rule  means  that  he  must 
return  the  consideration  if  he  is  able  to  do  so.  (a)  If  he  has 
wasted  it  during  infancy  he  will  be  excused,  and  may  disaffirm 
without  return.  (6)  Were  it  not  so,  the  advantage  of  the  principle 
relieving  infants  from  liability  would  be  in  a  large  measure  lost, 
as  the  infantowould  be  liable  for  the  most  extravagant  expendi- 
ture by  proof  that  he  had  defaced  or  ruined  goods  that  he  had 
purchased.^  If  the  property  has  been  injured,  he  need  only  return 
it  in  its  injured  condition.^  This  rule  could  not  be  applied  to  a 
case  where,  after  majority,  he  had  put  it  out  of  his  power  to  restore 
the  consideration.^ 

Right  to  recover  hack  money  paid.  —  The  view  at  one  time 
prevailed  that  if  an  infant  had  voluntarily  paid  money  upon  an 
intended  contract,  and  then  refused  to  go  on  with  it,  he  could  not 
recover  back  the  money.  The  action  to  recover  back  is  derived 
from  courts  of  equity,  and  it  was  assumed  that  it  was  not  inequi- 
table for  the  holder  of  the  money  to  retain  it,  so  long  as  he  was 
ready  to  go  forward  with  the  contract.^     The  later  view  is  that 

reported  giving  construction  to  this  Act.  Mass.  359  ;  Heath  v.  West,  28  N.  H.  101  ; 

Mr.  Pollock  is  of  opinion  that  it  reduces  Bartholomew  v.  Finnemore,  17  Barb.  428  ; 

all  voidable  contracts  of  infants  ratified  at  Kitchen  v.  Lee,  11  Paige,   107  ;  Betts  v. 

full  age,  whether  the  ratification  be  formal  Carroll,  6  Mo.  App.  518.   The  modification 

or  not,  to   the  position  of  agreements  of  of  the  rule  where  the  consideration  of  the 

imperfect  obligation, — that  is,  which  can-  contract  is  wasted   is  found  in    Green  v. 

not  be  directly  enforced,  though  valid  for  Green,  69  N.  Y.  553  ;  Tuckers  Moreland, 

other  purposes.    Pollock  on  Contracts  (4th  10   Pet.  58,  74  ;  Gibson  r.  Soper,  6  Gray, 

Lond.  ed.),  p.  62.   This  legislation  seems  to  279,  282  ;  Chandler  v.  Simmons,  97  Mass. 

interfere  unnecessarily  with  the  liberty  of  508 ;    Bartlett  v.   Drake,   100  Mass.  174  ; 

adults  to  make  contracts.     The  act  of  9  Dill  v.  Bowen,  54  Ind.  204  ;  Brantley  v. 

Geo.  14,    c.  14,   above  cited,    requiring  a  Wolf,  60  Miss.  420  ;  White  v.  Branch,  51 

memorandum  in  writing,  seems  to  be  the  Ind.  2]0. 
more  judicious  legislation.  2  Whitcomb  v.  Joslyn,  51  Vt.  79. 

1  For  the  general  principle,  see  Cogley  ^  Middleton  v.  Hoge,  5  Bush,  478. 

V.   Cushman,   16  Minn.    397;    Bryant   v.  *  Wilson  r.  Kearse, Peak e's  Add.  Cases, 

Pottinger,  6  Bush,  473  ;  Smith  v.  Evans,  196  ;    M'Coy    v.    Huffman,    8    Cow.   84  ; 

5    Humph.    70  ;    Badger  v.    Phinney,   15  Weeks  v.  Leighton,  5  N.  H.  343. 


[a]   But  see  Morse  v.  Ely,   154  Mass.  (h)  Craig  w.  Van  Bebber,  100  Mo.  584; 

458  ;  Clark  v.  Van  Court,  100  Lul.  113.        Harvey  v.  Briggs,  68  iliss.  60. 


INFANCY.  295 

this  rule  can  only  be  applied  when  the  infant  has  received  some 
benefit  from  the  contract.  If  he  has  received  no  benefit,  the 
money  can  be  recovered  back.i  (a)  Some  cases  in  which  the 
infant  has  been  precluded  from  recovery  by  reason  of  receiving 
some  benefit  are  found  in  a  note.^ 

Rescinding  contract  of  service.  —  An  infant  sometimes  makes  a 
contract  to  serve  for  a  fixed  time  at  a  specified  salary,  and  then 
before  the  time  elapses  repudiates  the  contract,  and  seeks  to 
recover  from  his  employer  the  reasonable  value  of  his  services. 
The  difficulty  in  this  case  is,  that  owing  to  the  doctrine  of  the 
"  entirety  "  of  the  contract,  one  must  regularly  perform  in  full 
before  he  can  recover  anything  from  the  other  party.  This  rule 
of  law  is  not  here  applied,  however.  The  infant  has  a  legal  right 
to  rescind  the  contract.  On  repudiating  it  the  contract  is  sup- 
posed to  have  had  no  existence.  Nothing  remains  but  the  fact 
that  he  has  worked  for  his  employer  for  a  time  with  his  assent. 
From  this  fact  the  law  infers  or  implies  a  promise  on  the  em- 
ployer's part  to  pay  the  reasonable  value  of  his  services.^  The 
effect  of  this  rule  will  be  qualified  by  the  fact  that  he  has  received 
compensation  for  his  services  from  time  to  time  as  he  rendered 
them.'^ 

Who  can  take  advantage  of  an  infanfs  inability.  —  The  first 
question  to  be  considered  in  this  connection  is,  whether  the 
infant's  contract  is  void  or  voidable.  If  the  contract  be  void, 
it  is  no  contract,  and  accordingly  it  binds  neither  party.  Each 
may  raise  the  question  of  invalidity.  If  it  be  voidable,  only  the 
infant  and  those  in  privity  with  him  can  raise  the  question.^ 
The  term  "  privity  "  includes  all  who  represent  him  on  his  death, 
such  as  heirs,  next  of  kin,  etc.  It  does  not  include  the  creditors 
of  the  next  of  kin,  the  rule  of  disaffirmance  being  for  the  benefit 
and  protection  of  the  infant.  If  both  parties  are  infants,  the  con- 
tract may  be  avoided  at  the  election  of  either  party.  The  rule 
may  be  illustrated  by  the  case  of  mutual  promises  to  marry.     If 

1  Corpe  V.  Overton,  10  Bing.  252;  *  Wilhelm  v.  Hanlman,  13  iMd.  140; 
Medbury  v.  Watrous,   7  Hill,  110.                Mountain!).  Fisher,  22  Wis.   93;  Tat't  v. 

2  Holmes  v.  Blogg,  8  Taunt.  3.5,  508.     Pike,  14  Vt.  405. 

Ex  parte  Taylor,  8  De  G,  M.  &  G.  254,  258  ;  ^  Beardsley  v.  Hotchkiss,  96  X.  Y.  201, 

Page  V.  Morse,  128  Mass.  99.  211,  and  Everson  v.   Carpenter,  17  ^Vend. 

8  Whitmarsh  v.   Hall,    3  Denio,    375  ;  419  ;    Taft   v.    Sergeant,    18    Bai-b.    320  ; 

Lufkin  V.  Mayall,  25  N.  H.  82,  overruling  Henry  v.   Root,  33  N.  Y.  526 ;  Walsh  v. 

Weeks  v.  Leighton,  5  N.  H.  343  ;  Judkins  Powers,  43  N".  Y.   23  ;  Chapin  v.  Shafer, 

V.  Walker,  17  Me.   38  ;  Hoxie  v.  Lincoln,  49  X.  Y.  407  ;  Sparman  v.  Keim,  83  X.  Y. 

25  Vt.  206  ;  Lowe  v.  Sinklear,  27  Mo.  308  ;  245. 
Danville  v.  Amoskeag  Mfg.  Co.,  62  X.  H. 
133. 


(rt)  Mordecai  v.  Pearl,  63  Hun,  553  ;  afTd,  136  X.  Y.  625. 


296  THE   LAW   OF   PERSONS. 

an  adult  promises  to  marry  an  infant,  the  adult  is  bound,  if  the 
infant  does  not  elect  to  disaffirm,  which  the  latter  may  do;M'f 
both  the  man  and  woman  are  infants,  each  may  elect  not  to  be 
bound.  A  ratification  by  both,  after  majority,  would  not  be  a  new 
contract  (as  it  would  be,  had  the  original  agreement  been  void), 
but  rather  a  confirmation  of  the  promises  made  during  their  mutual 
infancy.  Still  it  cannot  be  denied,  under  the  decisions,  that  the 
new  engagements  might  be  so  made  as  to  be  new  promises  instead 
of  a  ratification  of  the  old  promise .^ 

Section  III.  Capacity  to  do  and  iDerform  civil  Acts  other  than 
Contracts.  —  There  are  obligations  devolving  upon  an  infant 
either  by  some  rule  of  law  or  by  statute.  Thus  he  may,  as  heir 
to  an  ancestor,  be  called  upon  to  carry  out  a  contract  made  by 
the  latter  during  his  life,  or  he  may  enlist  in  the  army  or  the 
navy  under  the  statutes  of  the  United  States. 

It  is  a  general  rule  that  if  an  infant  voluntarily  does  that  which 
he  could  legally  be  required  to  do,  his  act  is  binding.  Such  an 
act  as  conveying  land  held  as  trustee,  or  discharging  from  record 
a  mortgage  which  has  been  paid,  or  assigning  dower  in  land  to  a 
widow  is  here  intended.  The  act  done  must  not  be  unnecessarily 
detrimental  to  him.  Thus,  if  he  should  assign  more  land  for  the 
widow's  dower  than  she  was  entitled  to,  the  assignment  could  be 
corrected  by  the  proper  court.  Statutes  permit  infants  to  be 
bound  as  apprentices,  and  require  them  to  sustain  their  illegiti- 
mate children.  In  such  a  case  as  that  last  named,  a  bund  given 
by  the  infant  for  the  support  of  the  child  will   be  valid. ^ 

Minors  of  the  age  of  sixteen  and  upwards  may  be  enlisted  in 
the  army  with  the  written  consent  of  parents  or  guardians.  With- 
out that  consent,  no  minor  can  be  enlisted.*  Minors  between  the 
ages  of  fourteen  and  eighteen  can  be  enlisted  in  the  navy  until 
they  are  twenty-one,  with  the  consent  of  their  parents  or  guar- 
dians. At  the  age  of  eighteen,  they  may  be  enlisted  for  the  regu- 
lar time  of  enlistment  (five  years)  without  parental  consent.^ 
When  they  are  once  held  under  the  authority  of  the  Federal 
government  they  are  under  the  control  of  the  United  States  and 
cannot  be  discharged  by  a  writ  of  habeas  corpus  issuing  from 
a  State  court  or  magistrate.^ 

1  Hunt  V.  Peake,  5  Cow.  475  ;  Hamilton  cation  by  an  infant  to  be  in  writing,  for  this 
V.  Lomax,  26  Barb.  615.  would  not  extend  to  a  new  promise.     See 

2  Ditcham  v.   Worrall,  L.  R.   5  C.  P.     cases  supra. 

Div.  410  ;   Coxhead  v.   Mullis,  L.  R.  3  C.  3  People  v.  Moores,  4  Den.  518. 

P.  Div.  439.     There  might  in  such  a  case  *  U.  S.  Rev.  Stat.  §§  1116-1119. 

be  a  question  for  the  jury  as  to  a  matter  of  &  U.    S.    Rev.    Stat.    §§1418-1420,  as 

fact.    Northcote  v.  Doughty,  L.  R.  4  C.  P.  amended  by  21  Stat.  L.  331,  §  2. 

Div.    385.     This  might  be   an  important  6  Tarble's  Case,  13  Wall.  397.     This  is 

distinction  in  States  which  require  a  rutifi-  a  leading  ca.se,  establishing  the  boundary 


INFANCY.  297 

The  principal  instances  of  incapacity  to  act  on  the  part  of  an 
infant  beyond  such  as  have  ah-eady  been  stated  are  these.  He 
is  not  in  general  eligible  to  public  office.^  Should  he  assume 
to  execute  the  duties  of  such  an  office,  he  might  be  regarded  as 
a  trespasser.2  He  cannot  by  his  own  act  change  his  domicile. 
He  cannot  by  common  law  act  as  administrator  until  seven- 
teen, and  in  New  York,  by  statute,  until  twenty -one.  (a)  Ad- 
ministration should  be  committed  to  another  during  minority. 
If  the  office  be  inadvertently  conferred  upon  him  by  the  probate 
court,  he  will  not  be  liable  to  account  for  goods  received  during 
infancy,  but  will  be  liable  as  trustee  for  all  assets  received  after 
majority .3  He  cannot  malce  a  will  of  real  estate,  (i^)  He 
cannot  appoint  an  attorney  nor  appear  in  court  by  attorney* 
but  only  by  guardian  ad  litem,  or  some  similar  representative 
recognized  by  the  court.  It  may  be  added  that  he  is  pro- 
tected from  liability  by  some  special  rules.  One  is  that  he  is  not 
affected  by  the  doctrine  of  estoppel  in  pais,  in  the  courts  of  com- 
mon law,  though  that  principle  lias  been  applied  to  him  to  some 
extent  in  the  equity  and  bankrujjtcy  courts.  Another  rule  is,  that 
the  statute  of  limitations  does  not  begin  to  run  against  him  as  a 
creditor  until  he  attains  majority.  He  is,  by  a  special  exception 
in  the  statute,  under  a  disability  wliich  leads  to  this  result. 

Section  IV.  Special  Rules  in  Courts  of  Equity  for  the  Protec- 
tion of  Infants.  —  Marriage  settlements  is  a  subject  over  which 
equity  has  cognizance.  There  are  two  classes  of  cases  to  be 
considered.  One  is  where  a  female  infant  is  a  ward  of  the  Court 
of  Chancery.  In  this  class  of  cases  the  court  will  compel  the 
husband,  on  marriage,  to  make  a  settlement  upon  her  from  her 
personal  estate.  The  reason  is  that  as  the  personal  property  of 
the  wife,  by  common  law,  belongs  to  the  husband,  or  can  be  re- 
duced by  him  to  possession,  without  such  an  exercise  of  jurisdic- 
tion the  court  could  not  protect  its  ward. 

The  other  class  of  cases  is  that  of  voluntary  settlements  of 
property  made  either  by  male  or  female  infants.  One  of  these 
may  assume  the  form  of  a  relinquishment  of  dower  by  the  intended 
wife  in  her  prospective  husband's  lands.  This  was  sanctioned  by 
a  statute  passed  in  the  reign  of  Henry  yiIl.,-5  if  made  in  a  pre- 
scribed manner.     This  statute  is  in   general  re-enacted  in  our 

between   the  jurisdiction   of  the    Federal  cases  cited  on  pp.  503,  504.     The  infant  in 

and  State  courts  in  an  important  class  of  this  case  had  been  chosen  as  constalde. 
cases.  ^  Carow  v.  Mowatt,  2  VAw.  Ch.  57. 

1  Claridge  v.  Evelyn,  5  B.  &  Aid.  81.  *  BcTiiiett  v.  Davis,  6  Cow.  393. 

2  Green  v.  Burke,"  23  Wend.   490,  and  ^  27  Henry  VIII.  c.  10,  §§  6-9. 

(a)  See  in  New  York,  2  R.  S.  75,  §  32.       [h)  See  in  X.  Y.,  2  R.  S.  57,  §  1. 


238  THE   LAW   OF    PERSONS. 

States.  It  creates  a  "  jointure."  The  act  creating  such  an  inter- 
est is  termed  the  Statute  of  Jointures.  The  details  will  be  found 
under  that  head  in  works  upon  real  estate.  Courts  of  equity 
uphold  informal  settlements  of  this  kind,  where  they  are  made  in 
good  faitli  and  a  competent,  certain,  and  reasonable  provision  is 
settled  upon  the  infant  wife.  These  are  termed  equitable  jointures. ^ 
Or  again,  the  settlement  may  be  of  the  intended  wife's  estate 
upon  the  intended  husband,  or  vice  versa.  The  Statute  of  Jointures 
docs  not  extend  to  this  case,  and  its  validity  depends  on  general 
principles  of  law.  A  settlement  of  real  estate  is  in  its  nature  a 
conveyance,  and,  according  to  rules  already  stated,  if  made  by  an 
infant,  must  be  voidable  on  attaining  majority.  But  there  is  the 
disability  of  marriage,  in  case  of  a  settlement  made  by  the  in- 
tended wife,  to  be  added  to  that  of  infancy.  Accordingly,  she 
might  avoid  the  settlement  after  the  coverture  ceases,  and  after 
attaining  majority .^  The  settlement  may,  however,  be  con- 
firmed after  majority  and  during  marriage  by  a  confirmatory 
deed.^  The  only  way  to  effect  an  absolutely  binding  settlement 
is  to  have  some  general  statute  or  a  private  act  of  the  legislature. 
There  is  now  in  England  a  general  statute  upon  this  subject, 
authorizing  infants,  with  the  sanction  of  the  Court  of  Chancery, 
to  make  binding  settlements  of  their  real  and  personal  estates.* 

There  is  a  statutory  provision  in  New  York  that  all  contracts 
made  in  contemplation  of  marriage  shall  remain  in  full  force  after 
such  marriage  takes  place  (a).  It  has  been  adjudged  in  one  case 
that  this  language  includes  infants  (l>').  This  has  not  yet  been 
decided  by  the  courts  of  last  resort.  It  would  seem  that  such 
general  words  are  not  to  be  construed  to  give  capacity  to  those 
who  are  at  the  time  incapable  to  do  a  valid  act,  and  that  they 
were  tacitly  excluded. 

1  McCartee  v.  Teller,  2  Paige,  511.  renders  valid  a  post-nuptial  as  well  as  an 
This  is  an  instructive  case.  See  also  Buck-  ante-nuptial  settlement  made  with  the 
in,£;ham  v.  Drurj%  3  Brown  Pari.  Gas.  492  ;  required  sanction.  Powell  v.  Oakley,  34 
Wilmot's  Opinions,  177.  By  the  Revised  Beav.  575.  It  does  not,  however,  alter  the 
Statutes  of  New  York  there  is  no  distinc-  statiis  of  the  infant  in  respect  to  capacity 
tion  between  le<;al  and  equitable  jointures,  to  convey  property.     In  re  Armit's  Trusts, 

2  Temple  v.  Hawley,  1  Sandf.  Ch.  153  ;  5  Ir.  R.  Eq.  352.  The  management  of  the 
Jones  V.  Butler,  80  Barb.  641.  It  is  said  real  estate  of  infants'  estates  under  settle- 
in  Temple  v.  Hawley,  supra,  that  the  pre-  ment  is  regulated  in  great  detail  in  Eng- 
ponderance  of  opinion  is,  that  the  wife  land  by  44  &  45  Vict.  c.  41  (Conveyancing 
cannot  avoid  the  deed  during  coverture.  Act  of  1881).  It  is  brought  under  the 
See  Beardsley  v.  Hotchkiss,  96  N.  Y.  201.  provisions  of  the  "Settled  Estates  "  Act  of 

'  Temple  v.  Hawley,  supra.  1877. 

*  18  &  19  Vict.  c.  43.      This  statute 


(a)  Laws  of  1848,  ch.  200,  §  4;  Rev.  [b)  Wetmore  v.  Kissam,  3  Bosw.  321. 

Stat.     8  th  ed.  p.  2601. 


INTANCY.  299 

A  court  of  equity  protects  the  rights  of  infants  and  does  not 
allow  the  answer  of  a  guardian  ad  litem  in  a  suit  to  be  used  to 
their  prejudice.  A  properly  drawn  answer  submits  the  rigiits  of 
the  infant  to  the  court.  No  decree  will  be  made  against  him  on 
the  admissions  of  the  guardian  to  his  prejudice.  The  answer  is  a 
mere  pleading. ^  The  guardian  will  be  made  to  respond  in  damages 
if  he  does  not  do  his  duty  towards  the  infant.^  The  rule  of  the 
court  is  that  a  decree  against  an  infant  does  not  bind  him  until  six 
months  after  his  majority.^  A  direction  to  the  contrary  must  be 
inserted  in  the  decree,  or  this  rule  will  be  applied.*  His  rights  can 
be  examined  in  a  new  suit  brought  by  him  as  well  as  by  an  appeal 
or  review  of  the  first  proceeding.  This  doctrine  is  termed  the 
right  of  the  "  parol  to  demur."  It  has  been  much  modified 
by  statute.^     The  doctrine  has  some  application  in  courts  of  law.^ 

A  question  of  some  importance  arises  as  to  the  effect  of  having 
no  guardian  ad  litem  appointed.  Will  tliis  vitiate  the  proceedings 
against  the  infant  altogether  so  as  to  make  them  a  nullity,  or  is  it 
only  error,  which  must  be  taken  advantage  of  in  the  same  action 
by  appeal  or  other  appropriate  mode  of  review  ?  It  is  settled  as  a 
general  rule  that  the  failure  to  appear  by  guardian  is  not  a  mere 
irregularity,  but  is  so  erroneous  that  a  court  will  set  aside  a  judg- 
ment —  e.  g.^  of  foreclosure  —  on  account  of  it ; ''  (a)  still,  it  is  not  an 
absolute  nullity.  The  questions  involved  in  the  proceeding  cannot 
be  treated  as  though  they  had  not  been  disposed  of.  In  other  words, 
the  judgment  or  decree  rendered  cannot  be  "  attacked  collaterally  " 
or  "  disregarded."  ^  The  mode  of  appearance  is  a  local  question,  and 
depends  on  local  law.^ 

A  court  of  equity  will  enforce  against  infants,  considered  as 
property  owners,  the  obligations  usually  incident  to  ownership. 
They  hold  property  subject  to  public  burdens, —  e.  g.,  taxes.  In 
some  respects  it  will  be  important  to  inquire  whether  they  acquired 
ownership  by  act  of  the  law  or  by  their  oivn  act.  By  "  act  of  tlie 
law  "  is  meant  such  a  case  as  inheritance  of  land  from  an  ancestor. 

1  Bulkley  v.  Van  Wyck,  5  Pai^e,  536  ;  ^  Derisley  v.  distance,  4  Term  R.  75  ; 
Stephenson  v.  Stephenson,  6  Paige,  353.  Flasket  v.  Beeby,  4  East,  485. 

2  Knickerbocker  v.  De  Freest,  2  Paige,  ''  ilcMurray  v.  McMurray,  60  Barb. 
304.  117. 

3  1  Daniell  Ch.  Pr.  (5th  eel.)  p.  174.  8  Colt  v.  Colt,  111  U.  S.  566. 

*  Wright    V.     Miller,     1     Sandf.    Ch.  9  Id.     It  is  said  in  this  case,   that  it 

103.  ay)pears  to  be  the  local  law  of  Connecticut 

5  This  right  is  abolished  in  Englnnd  by  that  the  appointment  of  a  guardian   ad 

11  Geo.  IV.  &  1  Wm.  IV.  c.  47,  §  10.  liton  is  not  necessary. 


(a)  The  omission  to  appoint  a  guar-  of  an  order  of  appointment  nunc  pro  tunc. 
dian  before  the  beginning  of  the  action  Rima  v.  Rossie  Iron  Works,  120  N.  Y. 
may  be  remedied  at  the  trial  by  the  entry     433.     See  ante,  p  276. 


300  THE   LAW   OF   PERSONS. 

As  the  law  casts  the  land  upon  the  infant,  it  makes  him  legally 
competent  to  bear  the  burdens  imposed  upon  it.  He  can  only 
escape  the  obligation  by  ceasing  to  own  the  property;  on  the 
other  hand,  where  the  property  is  acquired  by  his  own  act,  and 
the  acquisition  is  voidable,  he  will  escape  liability  by  disaffirming 
the  contract.  If  he  does  not  do  this,  but  remains  owner,  he  cannot 
escape  liability.  This  case  may  be  illustrated  by  a  subscription 
for  railway  shares,^  The  rule,  however,  could  not  necessarily  be 
applied  to  a  case  where  an  infant  had  taken  a  transfer  of  shares 
from  an  adult,  as  the  latter  might  be  bound  to  transfer  to  one  who 
would  by  law  be  capable  to  assume  the  liability  which  the  statute 
imposes,  and  accordingly  the  transferor  would  still  be  liable  to  an 
"  official  liquidator "  in  case  of  the  insolvency  of  the  company. 
There  might  be  a  difficulty  in  maintaining  this  view  if  the  pro- 
ceedings were  against  the  infant  and  he  did  not  repudiate  the 
transaction.^ 

Reference  may  now  be  made  to  some  questions  involving  the 
rights  of  unborn  children.  It  has  been  held  that  if  a  suit  be  com- 
menced, and  an  infant  be  born  during  its  progress,  the  court  will, 
if  justice  require  it,  make  him  a  party  to  it.^ 

Again,  questions  of  construction  in  a  will  may  involve  the  rights 
of  unborn  children.  A  leading  modern  instance  is  the  case  of  a 
testator  making  bequests  to  two  existing  reputed  children  of  his 
mistress,  M.  L.,  and  to  "  all  other  children  which  he  might  have  or 
he  reputed  to  have  by  M.  L.  then  born  or  thereafter  to  be  born." 
A  child  was  born  of  M.  L.  after  the  execution  of  the  will  and  be- 
fore the  testator's  death,  and  was  acknowledged  by  him.  The 
court  held  that  this  third  child  was  entitled  as  a  legatee.*  In  a 
later  case  the  mother,  being  also  a  mistress,  made  the  bequest  in 
favor  of  "  after  born"  children,  and  the  same  decision  was  made. 
In  the  first  case  the  woman  was  pregnant  when  the  will  was  made, 
and  in  the  later,  not.     This  fact  was  deemed  immaterial.^ 

Section  V.  Statutory  Protection  to  Infants.  —  There  is  an 
important  class  of  statutes  of  this  kind  both  in  England  and  in  this 
country,  showing  an  increased  disposition  on  the  part  of  legisla- 
tures to  so  control  the  contracts  of  infants  as  to  prevent  them  from 

1  In  re  Constantinople  &  Alexandria  Case,  L.  R.  8  Eq.  504  ;  Sj'mons'  Case,  L.  R. 
Hotel  Co.,  L.  R.  5  Ch.  App.  302,  303,  .5  Ch.  App.  298  ;  Weston's  Case,  Id.  614  ; 
n.  1.    Lord  Romilly,  M.  R.,  said,  "  I  am     Richardson's  Case,  L.  R.  19  Eq.  588. 

not   aware   of  any  case   in  which  an  in-  ^  The  George  and  Richard,  L.  R.  3  Adm. 

fant  has  been  relieved  from  shares  which  466  ;  Scruhy  v.  Payne,  34  L.  T.  n.  s.  845. 

have  been  allotted  to  him  on  his  o/ni  per-  *  Occleston  v.  FuUalove,   L.  R.  9  Ch. 

sonal  application."  Apji.  147. 

2  See  Capper's  Case,  L.  R.  3  Ch.  App.  5  /,,,  ^e  Goodwin's  Trust,  L.  R.  17  Eq. 
458  ;    Mann's  Case,   Lh  459,  n.  1.      Cur-  345. 

tis's   Case,   L.  R.   6  Eq.   455  ;   Costello's 


INFANCY. 


301 


rendering  service,  etc.,  to  the  injury  of  their  health  and  to  the  risk 
of  their  limbs  or  lives.  In  the  same  spirit  are  conceived  the 
acts  providing  against  cruelty  to  children.  These  acts  will  be 
stated  more  in  detail. 

The  object  of  the  so-called  Factory  Acts  as  passed  by  the 
English  Parliament  is  to  give  protection  to  children  and  women 
employed  in  factories  and  workshops  against  injury  from  machin- 
ery, to  secure  good  drainage  and  ventilation,  to  provide  educa- 
tion for  employees  under  thirteen  years  of  age,  and  to  regulate 
the  hours  of  labor,  meal-time,  and  overwork,  etc.  The  statutes 
branch  out  into  much  minuteness  of  detail.^  This  legislation  is  of 
course  apparently  open  to  the  objection  that  it  interferes  with  the 
right  of  employers  freely  to  contract  with  their  workmen.  It 
seems,  however,  to  be  justified  by  the  circumstances  of  the  case, 
particularly  in  its  application  to  children.^  There  is  similar  legis- 
lation in  this  country.3 

There  is  other  legislation  concerning  children  and  a  growing 
tendency  to  provide  against  acts  endangering  the  health,  life,  or 
morals  of  young  cliildren,  and  to  make  it  highly  penal  for  parents 
and  others  having  charge  of  them  to  abandon  them  or  to  neglect 
to  provide  properly  for  them.  Reference  to  such  legislation  will 
be  found  in  the  note.* 

~  Section  VI.  Liahility  of  an  Infant  for  his  Torts.  —  By  a  "  tort " 
is  here  meant  such  a  wrongful  act  unconnected  with  a  contract  as 
gives  an  injured  party  a  right  to  recover  damages  or  to  obtain 
other  suitable  redress,  but  is  not  for  the  time  being,  at  least, 
treated  as  a  crime.  Infancy  is  no  excuse  for  the  commission  of 
such  an  act. 


1  See  41  &  42  Vict.  c.  16  in  connection 
with  former  acts.  See  also  54  &  55  Vict. 
c.  75  and  55  &  56  Vict.  c.  62. 

^  A  good  general  view  of  the  history  of 
this  legislation  is  found  in  the  9th  edition 
of  the  Encyclopedia  Britannica,  title  "Fac- 
tory Acts." 

3  The  legislation  in  New  York  upon  this 
general  subject  is  to  be  found  in  ch.  409  of 
the  Laws  of  1886,  as  amended  by  ch.  462 
of  the  Laws  of  1887;  ch.  560,  Laws  of  1889; 
ch.  398,  Laws  of  1890;  and  ch.  673,  Laws 
of  1892.  The  substance  of  these  laws  is, 
tluit  no  child  under  the  age  of  fourteen 
shall  be  employed  in  any  manufacturing 
establishment.  "  A  manufacturing  estab- 
lishment" does  not  include  an  employer 
employing  less  than  five  persons,  except 
in    cities.     A    register    must    be     kept 


entering  the  name,  birthplace,  age,  and 
residence  of  every  emplo3'ee  under  the  age 
of  sixteen,  and  these  facts  must  be  proved 
by  affidavit, as  prescribed  in  the  Act  of  1887, 
and  kept  on  file  by  the  employer.  There 
are  provisions  for  the  enclosure  of  hoisting 
shafts,  protecting  of  elevator  ways,  con- 
struction of  fire-escapes,  cleaning  of  ma- 
chinery while  it  is  in  motion,  for  suitable 
wash-rooms  and  closets,  and  the  time  to  be 
allowed  for  the  noon-day  meal  (not  less 
than  forty-five  minutes).  A  factory  in- 
spector, with  an  assistant  and  deputies,  is 
created  with  provisions  for  carrying  the 
statute  into  eff"ect.  Further  details  should 
be  sought  in  the  statutes. 

*  Penal  Code  of  New  York,  §§  282,  287, 
288,  289,  290  a,  291,  292,  292  a,  292  b, 
293.     See  also  §  887. 


302  THE    LAW    OF    PERSONS. 

It  has  already  been  stated  that  an  infant  is  not  liable  for  a  tort 
arising-  out  of  a  contract.  The  meaning  here  is,  that  the  wrong 
miLst  not  be  committed  as  a  mode  of  carrying  out  the  contract. 
If  an  infant  makes  use  of  a  contract  as  an  occasion  or  opportunity 
to  commit  a  tort,  he  will  not  be  excused.  Thus,  if  an  infant,  having 
hired  a  horse,  should,  through  inexperience  or  negligence,  drive  him 
immoderately,  or  otherwise  injure  him,  there  would  be  no  action.^ 
On  the  other  hand,  if  he  should  wilfully  maltreat  the  animal,  he 
would  be  liable.'^  The  contract  in  this  last  case  would  simply 
supply  an  opportunity  for  the  commission  of  the  wrong.  So  he 
would  be  liable  if  lie  had  been  instructed  by  the  owner  not  to  use 
the  horse  in  a  particular  way,  —  such  as  to  jump  fences  on  a  steeple- 
chase, —  and  he  violated  the  directions  to  the  owner's  injury .^  It  is 
enough  that  the  wrongful  act  is  independent  of  the  contract.*  So 
if  he  hires  a  horse  to  go  to  one  place,  but  goes  in  a  different  direc- 
tion, he  is  held  in  law  to  have  converted  the  animal  to  his  own  use. 
If  an  adult  did  this  he  would  be  liable  to  an  action  for  conversion.^ 
In  like  manner  an  infant  would  be  liable.^  It  has  already  been 
shown  that  if  an  infant  practises  a  fraud  in  making  a  contract,  he 
cannot  be  sued  in  an  action  which  involves  the  affirmance  of  the 
contract.  The  better  opinion  is,  that  the  injured  party  may  dis- 
affirm the  contract  on  the  ground  that  there  was  no  true  contract, 
and  so  recover  back  the  goods  in  an  appropriate  action  (replevin), 
or  bring  an  action  in  conversion  for  their  value.^ 

It  is  a  general  rule  of  law  that  one  whose  goods  have  been 
unlawfully  converted  and  sold  may  waive  the  wrong  and  bring  an 
action  to  recover  the  price  received,  by  a  species  of  ratification. 
This  rule  is  applied  to  infants  who  are  wrongdoers.^ 

The  rule  of  liability  for  torts  has  been  applied  to  a  case  where 
a  missile,  thrown  by  a  lad  in  sport,  caused  injury.  The  theory  is 
that  the  injured  party  is  entitled  to  compensation  for  damages, 
even  though  there  be  in  fact  no  malicious  intent.^  The  commis- 
sion of  the  tort  is  not  excused  on  the  ground  that  the  infant's 
father  commanded  him  to  commit  it.^^ 

1  Eaton  V.  Hill,  50  N.  H.  235.  i'.  Cowan,  59  111.  341.     For  a  discussion 

2  Id.  of  the    general    subject,  see    Ferguson   v. 
8  Burnard  v.  Haggis,  14  C.  B.  n.  s.  45;     Bobo,  54  Miss.  121. 

Walley  v.  Holt,  35  L.  T.  N.  s.  631.  »  Elwell  v.  Martin,  32  Vt.  217  ;  Sliaw 

*  Campbell  v.  Stakes,  2  Wend.  137.  v.  Coffin,  58  Me.  254.     So  if  he  had  given 

5  Fish  V.  Ferris,  5  Duer,  49.  his  note  by  way  of  settlement  it  has  been 

^  Homer   v.    Thwing,    3    Pick.     492  ;  held  that  he  could  be  sued  upon  the  note. 

Towne  v.   Wiley,   23  Vt.  355  ;    Vasse  v.  Ray  v.  Tubbs,  50  Vt.  688. 

Smith,  6  Cranch,  226  ;  Walker  v.  Davis,  ^  Peterson  v.  Haffner,  59  Ind.  130.     See 

1  Gray,  506.      But  see  Penrose  v.  Curren,  Conway  v.  Eeed,  66  Mo.  346. 

3  Rawle  (Penn.),  351.  lo  Humphrey  v.  Douglass,  10  Vt.  71. 

■^  jSTolan  v.  Jones,  53  la.  387;  Mathews 


INFANCY.  303 

Section  VII.  Liahillty  for  Crimes.  —  The  responsibility  of  an 
infant  for  the  commission  of  a  crime  depends  upon  his  capa- 
city to  form  a  criminal  intent.  There  is  an  arbitrary  rule  of 
the  common  law  that  an  infant  under  seven  years  of  age  cannot 
commit  crime  of  the  grade  of  felony.i  Between  the  ages  of  seven 
and  fourteen  he  may  or  may  not  be  capable,  as  the  evidence  shows 
discretion,  or  capacity  to  understand  the  nature  of  the  act  and  its 
wrongfulness.^  After  the  prescribed  age  of  fourteen  he  is  pre- 
sumptively capable. 

The  rule  of  incapacity  extends  to  cases  of  criminal  neglect  as 
woll  as  to  positive  wrongs.  For  example,  a  child  of  one  or  two 
years  of  age  cannot  be  charged  with  crime  for  allowing  a  nuisance 
to  remain  upon  his  property .^ 

Formerly  the  punishment  for  crimes  committed  by  infants 
(having  capacity)  was  the  same  as  in  the  case  of  adults.  The 
modern  law  is  more  humane  and  philosophical.  The  present 
practice,  when  the  infant  criminal  is  under  a  prescribed  age 
(e.^.,  sixteen),  is  to  commit  him  for  care  and  training  to  insti- 
tutions known  as  reformatories,  houses  of  refuge,  industrial 
schools,  or  juvenile  asylums.  These  are  regulated  in  England 
and  the  various  States  of  this  country  by  local  statutes.^ 

Under  a  beneficent  provision  of  the  New  York  law,  a  male  who 
is  between  the  ages  of  sixteen  and  thirty,  convicted  of  felony, 
who  has  not  been  previously  convicted  of  felony,  may,  in  the 
discretion  of  the  court,  be  sentenced  to  a  reformatory  prison 
known  as  the  New  York  State  Reformatory  at  Elmira.^ 

1  The  New  York  Penal  Code  is  broader.  3  People  v.  Townsend,  3  Hill,  479. 

Its  language  is  that  a  child  under  the  age  ''  In  Xew  York  see  Penal  Code,  §§  700, 

of  seven  years  cannot  commit  a  crime,  §  18.  701,  and  713.     In  England  see  29  &   30 

2  State  V.  Learnard,  41  Vt.  585.  The  Vict.  c.  117,  Reformatory  Schools  Act, 
extreme  age  of  presumptive  incapacity  is  also  37  &  38  Vict.  c.  47  and  the  Indus- 
reduced  in  New  York  to  twelve,  §19.  trial  Schools  Act  of  the  same  year,  29  &  30 
There  is  a  special  rule  in  the  case  of  rape.  Vict.  c.  118. 

Peual  Code,  §  279.  5  Penal  Code,  §  700. 


CHAPTER  IX. 

THE  DOCTRINE  OP  STATUS  AS  AFFECTING  THE  CAPACITY  OF  PERSONS 
OF  UNSOUND  MIND  (INCLUDING  IDIOTS  AND  LUNATICS,  AS  WELL 
AS    HABITUAL    DRUNKARDS    AND    PRODIGALS). 

The  principal  object  of  this  chapter  is  not  to  consider  the 
rules  of  law  which  seem  to  test  mental  unsoundness,  but  to  dis- 
cuss the  matter  of  placing  persons  ascertained  to  be  of  unsound 
mind  under  the  care  of  guardians,  conservators,  or  committees,  or 
bv  whatever  name  such  overseers  may  be  called,  as  well  as  the 
legal  effect  of  such  guardianship  upon  the  capacity  of  the  ward 
to  do  future  legal  acts.  Briefly  stated,  the  topic  concerns  the 
"status"  or  legal  condition  of  this  class  of  persons. 

It  is  well  to  premise,  that  questions  of  capacity  to  do  legal  acts 
may  be  presented  to  a  court  of  justice  under  two  leading  con- 
ditions :  one  where  capacity  is  contested,  and  there  is  no  guar- 
dian, and  the  other,  where  the  act  is  done  by  one  at  the  time 
under  guardianship. 

It  is  a  rule  that  every  court  having  the  power  to  dispose  of  a 
matter  in  which  the  validity  of  a  contract  or  other  legal  act 
comes  in  question,  has  jurisdiction  incidentally  to  decide  upon 
the  capacity  of  a  person  performing  the  act  under  considera- 
tion. The  validity  of  a  deed,  will,  marriage  or  contract  might 
be  respectively  in  issue  in  one  case  before  a  court  of  law,  in 
nnother  before  a  court  of  equity,  and  again  before  a  probate 
court ;  and  if  insanity  were  set  up  to  overturn  the  transaction, 
the  court  having  control  of  the  controversy  could  lawfully  deter- 
mine whether  a  party  to  the  transaction  had  sufficient  mental 
capacity  to  perform  it.  Such  a  determination  would,  however, 
only  dispose  of  the  particular  case,  so  that  all  the  questions  could 
be  raised  anew  in  a  different  action  between  other  parties.  This 
multiplicity  of  possible  actions  might  be  a  very  good  reason,  when 
mental  unsoundness  is  assumed,  for  determining  directly  the 
capacity  of  the  individual  to  do  legal  acts. 

It  should  be  added  that  such  a  person  might,  if  not  under 
guardianship,  dissipate  his  estate,  or  destroy  it  altogether,  by 
mere  acts  of  insane  folly,  or  might  commit  wrongs  injurious  to 
others,  who  would  be  entitled  to  compensation  from  his  estate. 


STATUS    OF    PERSONS    OF   UNSOUND   MIND.  305 

Tt  is,  accordingly,  a  liig'lily  beneficent  thing  to  have  a  method 
whereby  sanity  can  be  directly  tested,  so  that  sanity  or  insanity  is 
the  direct  and  practically  the  sole  object  of  inquiry.  If  a  person 
in  such  a  proceeding  is  found  to  be  insane,  he  may  be  made  a 
ward  of  a  court  of  equity,  while  his  guardian  will  in  future  repre- 
sent him  in  needful  legal  acts.  An  inquiry  upon  this  topic  will 
naturally  lead  to  a  discussion  of  the  jurisdiction  of  the  court,  the 
mode  of  proceeding,  and  the  effect  of  the  adjudication. 

Section  I.  The  Jurisdiction  of  the  Court.  —  The  correct  view 
seems  to  be,  that  this  was  derived  from  the  same  source  as  the 
power  over  infants.  This  has  been  explained  as  the  doctrine  of 
parens  patrice.  What  is  meant  is,  that  the  king  had  the  power 
of  protection  over  idiots  and  lunatics,  as  he  had  over  infants,  and 
that  this  passed  by  delegation  to  the  Court  of  Chancery. 

There  has  been  a  difference  of  opinion  among  jurists  upon  this 
question,  some  maintaining  that  there  was  no  original  power 
vested  in  the  king,  at  least  over  the  idiots'  or  lunatics'  lands, 
but  that  his  authority  rested  upon  a  statute  passed  in  the  reign 
of  Edward  II.,  concerning  the  royal  prerogative.^  It  would,  how- 
ever, appear  from  the  reports  in  the  Year  Books  of  Edward  I., 
that  the  power  was  then  admitted  to  exist  in  the  court  so  fully 
that  discussion  of  it  was  thought  unnecessary.  This  controversy 
is  practically  set  at  rest  by  a  case  decided  in  the  year  1304,  in 
the  reign  of  Edward  I.,  and  of  course  a  number  of  years  before 
the  statute  of  Edward  II.,  on  which  the  jurisdiction  of  the  court 
has  by  many  jurists  been  supposed  to  rest.  This  case  was  not 
known  to  the  legal  profession  until  very  recently,  the  report  of  it 
having  been  first  published  in  the  year  1864.  The  case  is  sub- 
joined in  full. 

"  One  A.  demanded  certain  tenements  against  one  Piers,  which 
Piers  vouched  to  warranty  one  D.  —  whose  body  and  part  of  whose 
lands  {because  he  was  an  idiof)  were  in  the  kin  if  s  hands,  and 
part  of  whose  lands  were  in  the  hand  of,  &c.,  and  part,  &c.  — to 
be  summoned  in  the  county  of  Dorset.  —  Malberthorp,'"  (of  coun- 
sel objects)  :  "  You  vouch  one  D.,  who  is  an  idiot,  and  in  icard  to 
the  king  ;  and  vouching  an  idiot  is  like  vouching  an  infant,  in  which 
latter  case  one  shall  not  be  received  to  vouch  without  showing  a 
specialty  ;  and  this  by  reason  of  the  hardship  that  would  ensue  to 
the  demandant,  as  thereby  his  right  would  be  delayed,  for  the 
parol  would  demur  without  day  ;  therefore  let  them  show  the 
deed  by  virtue  whereof  they  vouch.  —  Bereford,  J.  You  are 
saying  nothing  wonderful. — Friskeney''  (of  counsel  for  the  other 
side)  :    "  See   here   the   deed    (and   it   contained   a   warranty). 

1  17  Edw.  II.  c.  9  &  10.      See  Hume  v.  Burton,  1  Kidgeway's  Pari.  C.  204,  224. 

20 


306  THE   LAW    OF   PERSONS. 

Bereford,  J.  Go  and  adieu  without  day,  &c.  And  the  king  is 
to  be  spoken  with,  &c."  ^ 

This  venerable  case,  decided  nearly  six  hundred  years  ago,  dis- 
closes the  fact  that  idiots  were  then  in  wardship  to  the  king, 
because  tliey  were  idiots,  in  the  same  way  as  infants ;  that  the 
rules  applicable  to  the  disabilities  of  an  infant  in  court  were 
applied  to  them  ;  and  that  these  rules  were  at  that  time  so  well 
established  as  to  be  instantly  conceded  by  the  judge  in  response 
to  the  counsel  representing  the  idiot,  but  that  the  king  as  guar- 
dian was  to  be  spoken  with. 

The  statute  of  Edward  II.,  already  referred  to,  must  be  regarded 
simply  as  declaratory  of  existing  law,  except  so  far  as  new  rules 
were  introduced  by  it.  An  arbitrary  and  wholly  unjust  dis- 
tinction was  established  by  it,  to  the  effect  that  the  king  could 
take  the  profits  of  an  idiot's  land  to  his  own  use,  except  as  to 
supplying  him  with  necessaries,  while  in  the  case  of  a  lunatic 
there  was  deemed  to  be  a  trust.^  It  would  result  that  a  court  of 
equity  has  jurisdiction  over  persons  of  unsound  mind  from  the 
simple  fact  of  their  mental  unsoundness,  although  their  unsound- 
ness has  not  yet  been  judicially  determined  by  the  court.^  There 
are  important  statutes  on  this  subject  both  in  England  and  in  this 
country.*  (a) 

Section  II.  The  Mode  of  Proceeding.  —  The  proceeding  in 
such  a  case  is  not  a  trial ;  it  is  in  the  nature  of  an  inquiry  before 
commissioners  appointed  by  the  Court  of  Chancery.  The  form 
of  the  existing  commission  arose  from  the  form  of  writs  origi- 
nally granted  by  the  king.^  An  application  for  a  commission  is 
made  by  petition.  The  commissioners  act  with  a  jury,  and  hear 
testimony,  and  make  up  a  verdict  or  finding.^  This  is  returned 
to  the  court  for  its  action,  which  may  be  either  by  way  of  con- 
firmation, or  it  may  be  set  aside,  if  improperly  executed.'^ 

1  Year  Book,  32  &  33  Edw.  I.  Pub-  &  46  Id.  c.  82.  In  New  York  there  are 
lished  under  direction  of  the  Master  of  the  detailed  regulations  in  the  Code  of  Civil 
Rolls.     Lond.  1864,  p.  272.  Procedure,  §§  2320-2344. 

2  See  17  Edw.  II.  c.  9  &  10.  6  Rochfortu.  Ely,  1  Ridgeway's  Pari.  C. 
8  Vane  v.   Vane,  L.  R.  2  Ch.  D.  124  ;     524,  539. 

In  re  Brandon's  Trusts,  L.  R.  13  Ch.  D.  6  in  j^gw  York  there  must  be  not  less 

773.     Independent  of  the  case  cited  from  than   twelve  nor  more    than  twenty-four 

the  Year  Book,  supra,  the  jurisdiction  of  jurymen.     At  least  twelve  must  concur  in 

the  court  is  very  obscure  and  the  decisions  a   finding.    Code    of  Civ.    Pro.   §§  2330, 

irreconcilable.  2331. 

*  See  in  England  16  &  17  Vict.  c.  70 ;  ''  Ex  parte  Roberts,   3  Atkyns,   5  ;  Ex 

18  &  19  Id.  c.   13  ;  25  &  26  Id.  c.  86  ;  45  parte  Crannier,  12  Ves.  445,  454. 


in)  See  also  52  &  53  Vict.  c.  41  ;  53  &  54  Vict.  c.  5  as  amended  by  54  &  55  Vict. 
65. 


STATUS    OF    PERSONS    OF   UNSOUND    MIND.  307 

If  the  alleged  lunatic  is  found  to  be  of  unsound  mind,  there 
may  be  a  "traverse"  on  his  part.  The  meaning  of  this  is,  that 
lie  may  have  the  subject  examined,  not  as  an  inquiry,  but  tried 
after  the  usual  methods  of  an  action,  by  having  an  issue.  This 
is  a  right  which  cannot  properly  be  denied.^  In  I]ngland,  tlie 
course  was  to  send  the  case  out  of  the  Court  of  Chancery  to  a 
court  of  law.  The  course  sanctioned  by  Chancellor  Kent  here 
has  been,  to  retain  the  case  in  the  Chancery  Court,  and  to  direct 
the  question  to  be  tried  in  the  court  of  law.^  Other  persons 
besides  the  alleged  lunatic  aggrieved  by  the  decision  may,  in  the 
discretion  of  the  court,  be  allowed  to  traverse  the  finding.^ 

If  the  lunacy  has  been  properly  found,  and  the  lunatic  is  sub- 
sequently restored  to  reason,  an  application  may  be  made  to  have 
the  commission  "  superseded."  In  such  a  case  it  is  usual  in 
England  for  the  Chancellor  in  person  to  examine  the  lunatic,  and 
so  satisfy  himself  of  his  restoration.  In  this  country  this  course 
may  be  taken,  or  the  subject  may  be  referred  to  a  master  in 
Chancery  or  referee,  who  will  report  to  the  court.*  (a) 

An  inquisition  of  lunacy  may  be  "  suspended  "  without  being 
"  superseded."  By  "  suspension  "  is  meant  removing  the  effect 
of  the  finding  as  to  certain  acts,  but  allowing  it  to  stand  in  other 
respects. 

For  example,  it  might  be  so  far  suspended  as  to  enable  the 
party  to  make  a  will,  but  still  remain  operative  as  to  other  trans- 
actions. Such  a  suspension  would  not  of  itself  establish  the  fact 
that  the  will  was  validly  made  by  a  person  having  capacity,  but 
it  would  remove  the  artificial  incapacAty  produced  by  the  operative 
force  of  the  inquisition,  and  allow  after  the  testator's  death 
a  general  inquiry  into  his  mental  condition  when  the  will  was 
made.^ 

Section  III.  The  Effect  of  the  Adjudication.  —  The  regular 
effect  of  an  adjudication  of  mental  unsoundness  is  to  deprive 
the  person  in  question  of  capacity  to  do  future  legal  acts.  The 
inquiry  is  henceforward  not  open  as  to  whether  or  not  he  is  really 
unsound  in  mind.  He  has  an  artificial  condition  impressed  upon 
him,  and  may  be  well  enough  styled  a  "  legal  lunatic."  If  he  were 
declared  an  habitual  drunkard,  he  would  be  so  legally,  whether 

^  Ex  parte  Wragg,  5  Ves.  450.  2335,    for   the   present    practice   in    New 

2  Matter  of  Wendell,  1  Johns.  Ch.  600.     York. 
There  is  a  form  of  an  order  for  trial  on  p.  3  Matter  of  Fust,  1  Cox  Eq.  418. 

603.      See  the  Code  of  Civ.  Pro.  §§  2334,  *  Matter  of  Hanks,  3  Johns.  Ch.  567. 

5  See  Wait  v.  Maxwell,  5  Pick.  217. 


{a)  The  commission  of  lunacy  cannot  be  Owens,  44  N.  Y.  St.  R.  306;  afTd.  136  N". 
superseded  in  such  a  proceeding  after  the  Y.  642.  For  the  tests  of  a  recovery  from 
death  of  the  lunatic.     In  the  flatter  of    lunac}',  see  Matter  of  Brugh,  61  Hun,  193. 


308  THE    LAW   OF    PEliSONS. 

he  were  so  in  fact  or  not.^  Future  contracts  would  accordingly 
be  void.2  (a)  There  is  a  difference  of  opinion  as  to  the  point 
whether  this  rule  extends  to  wills.  Some  courts  hold  that  one 
under  guardianship  is  competent  to  make  a  will,  if  restored  to 
reason,  though  the  letters  of  guardianship  have  not  been  super- 
seded.2(^)  Others  hold  a  more  rigorous  view,  and  deem  tlie  act 
of  the  lunatic  after  the  guardianship  to  be  void.  In  one  case  it 
is  said  that  the  lunatic  (i.e.,  one  judicially  declared  to  be  so) 
should  for  most  if  nut  all  purposes  be  regarded  as  civilly  dead.* 
And  in  this  spirit  all  gifts,  contracts,  bonds,  etc.,  are  void,  and 
his  capacity  to  enter  into  such  transactions  is  suspended  until  he 
is  permitted  by  order  of  the  court  to  resume  the  control  of  his 
property.^  The  courts  in  some  States  hold  that  an  inquisition 
only  makes  a  prima  facie  case.^  The  true  view  undoubtedly  is 
that  the  whole  matter  resolves  itself  into  capacity  to  contract. 
One  judicially  declared  insane  has  no  such  capacity. 

There  is  a  highly  impoi'tant  inquiry  as  to  the  effect  of  a  finding 
of  lunacy  when  the  insanity  is  dated  back  by  the  jury  holding  the 
inquisition.  For  example,  the  finding  might  be  that  A.  is  a 
lunatic  or  of  unsound  mind,  and  has  been  for  the  last  two  years. 
During  that  period  he  may  have  made  contracts,  conveyances,  etc. 
The  expression  used  in  the  decisions  is,  that  the  prior  contract 
is  in  such  a  case  "  overreached  "  by  the  inquisition.  The  point 
then  is,  whether  such  a  finding  will  make  the  contract  so  over- 
reached utterly  void.  The  correct  view  is,  that  it  will  not.  Such 
a  conclusion  would  be  highly  inequitable  and  unjust,  since  the 
opposite  party  to  the  contract  had  no  opportunity  to  be  heard, 
unless  in  some  form  he  had  been  permitted  to  deny  or  "  traverse  " 
the  inquisition.  The  authorities,  however,  hold  that  the  ante- 
dated insanity  raises  a  presumption  that  the  contract  is  void. 
This  seems  sufficiently  severe,  and  even  illogical,  since  nothing 
should  ever  be  presumed  in  tliis  artificial  way  against  one  not  a 
party  to  the  proceeding,  who,  when  he  made  the  contract,  had  in 

1  This  point  is  ably  stated  by  the  Su-  Fitzhugh  v.  Wilcox,  12  Barb.  235  ;  Bever- 
preme  Court  of  Pennsylvania  in  ImhofF  I',  ley's  Case,  4  Coke,  124  («)  ;  Rannels  v. 
Witmer,  31  Pa.  St.  243.  Gerner,  80  JIo.   474  ;  Griswold  v.   Butler, 

2  la.  3  Conn.    227  ;   Imhoff  v.  Witmer,  31  Pa. 

3  Stone    V.    Damon,     12    Mass.    488;  St.  243. 

Leonard  v.   Leonard,  14  Pick,  280,  284  ;  «  Hill  v.  Day,  34  N.  J.  Eq.  150  ;  Keys 

Breed  v.  Pratt,  18  Id.  115.  v.  Norris,  6  Rich.   S.  C.   Eq.  388.     It  is 

*  McNees  v.  Thompson,  5  Bush  (Ky. ),  made  so  by  statute  in  Ohio,      See  Messen- 

686.  ger  v.  Bliss,  35  Ohio  St.  587. 

5  L'Amoureux  v.  Crosby,  2  Paige,  422  ; 


(ffl)  Carter  v.  Beckwith,  128  N.  Y.  312.     Rice  v.  Rice,  50  Mich.  448  ;  s.  c  53  Mich. 
(p)  Stevens  v.  Stevens,  127  Ind.  560  ;     432. 


STATUS    OF    PEKSONS    OF    UNSOUND    MIND.  309 

his  favor  the  prosuinption  that  he  was  contracting  with  a  person 
competent  to  contra ct.^  (a) 

The  regular  result  of  an  inquisition  is  the  appointment  of  a 
guardian,  in  some  States  called  a  "committee,"  in  others  "a 
conservator,"  and  again  an  "  overseer."  The  term  "  committee  " 
is  to  be  preferred,  as  it  is  found  in  the  common  law. 

The  committee  has  charge  sometimes  of  the  estate  alone,  at 
other  times  of  the  person  alone,  or  it  may  be  of  both.  The  prop- 
erty of  the  lunatic  is  propei'ly  deemed  to  be  in  the  custody  of  the 
court  (custodia  legu)^  and  the  committee  is  its  officer.^  His 
position  is  much  like  that  of  a  receiver  in  the  case  of  the  judicial 
administration  of  a  trust.  His  right  to  sue  in  his  own  name  or  to 
be  sued  as  committee  is  generally  a  matter  of  local  regulation.^ 

Important  questions  arise  as  to  the  theory  on  which  the  luna- 
tic's estate  should  be  managed  by  the  court,  whether  for  the 
lunatic's  benefit,  or  for  his  representative's.  The  correct  theory 
is  to  manage  it  for  the  best  interests  of  the  lunatic,  without 
special  reference  to  his  representatives.  Thus,  if  he  were  a  man 
of  wealth  and  social  position,  the  aim  of  the  court  would  be  to 
keep  up  a  mode  of  life  and  habit  of  expenditure  closely  resembling 
that  which  he  had  adopted  while  sane,  and  in  that  aspect,  for 
example,  to  hire  such  a  pew  in  a  church  as  he  had  then  hired,  and 
to  continue  the  appropriations  for  charitable  purposes  which  he 
had  been  accustomed  to  make.*  This  general  theory  has  recently 
been  carried  so  far  in  England  by  the  Court  of  Appeal  as  to  hold 
that  it  has  jurisdiction  to  order  a  "  debt  of  honor"  to  be  paid  out 
of  the  lunatic's  estate.  It  was  not  the  case  of  a  gambling  debt, 
wdiich  was  called  a  "  debt  of  dishonor,"  but  a  voluntary  obligation 
which  a  man  of  honorable  sentiments  had  engaged  to  pay,  and 
had  already  in  part  discharged.  The  estate  of  the  lunatic  was 
large,  there  were  no  creditors,  and  the  next  of  kin  did  not  object 
to  the  action  of  the  court.^ 

Tlie  expenditure  must  in  all  such  cases  be   made  under  the 

1  On  this  general  subject  see  Hart  v.  ^  Adams  v.  Thomas,  81  N.  C.  296. 

Deamer,  6  Wend.  497  ;  Osteihout  v.  Shoe-  ^  Boiling  v.  Turner,  6  Rand.  ( Va. ),  584. 

maker,  3  Hill,  513  ;  Demilt  v.  Leonard,  11  For  the  New   York  law  as  to  his  powers 

Abb.  Pr.  252  ;  Rogers  v.  Walker,  6  Pa.  St.  and  duties,  see  Code  Civ.  Pro.  §  2337  and 

371  ;   Willis  v.   Willis,    12    Pa.    St.    159.  §§  2339-2344.     He  is  required  to  file  in- 

Under  the  present  New  York  Statute  the  ventories  and  render  accounts  much  in  the 

finding  must  be  limited  to  the  time  of  the  same  wny  as  an  executor  or  administrator, 
inquiry,   and  it  cannot  properly  be  found  *  May  v.  May,  109  Mass.  252. 

that  incapacity  has  existed  for  any  definite  ^  /,i  re  Whitaker,  L.  R.   42  Ch.   Div. 

period   in   the    past.     Code  of  Civ.    Pro.  119. 
§  2335.     In  re  Demelt,  27  Hun,  480. 


(a)  Hughes  v.  Jones,  116  N.  Y.  67. 


310  THE    LAW   OF   PERSONS. 

sanction  of  the  court.  The  mere  fact  that  a  vendor  continues  of 
his  own  motion,  and  with  full  knowledge  of  the  facts,  to  sell  to  the 
lunatic  merchandise  which  he  had  heen  accustomed  to  sell  him, 
would  not  give  him  a  cause  of  action,  either  against  the  lunatic 
or  the  committee.^ 

Similar  general  rules  are  applied  in  several  of  the  States  to 
spendthrifts  and  habitual  drunkards.'-^ 

Several   inquiries  may  be  suggested  concerning  the  effect  of 
guardianship  in  one  State   over  the  person  or  property  of  the 
lunatic  in  another  State  or  country.     (1)  It  is  a  general  rule,  that 
a  committee  appointed  in  one  State  has  no  power  to  act  in  another 
State.3     It  has,  however,  been  held  that  a  foreign  curator  may 
bring  actions  in  England  for  money  due  to  the  lunatic,  or  receive 
money  and  give  a  good  discharge  for  it.    His  case  might  be  likened 
to  that  of  a  foreign  assignee  in  bankruptcy  who  takes  the  title  to 
the  bankrupt's  estate  by  an  assignment  operating  by  a  rule  of  law.* 
The  case  seems  to  belong  to  the  topic  of  the  "  comity  of  States  or 
nations,"  and  the  foreign  court  may  have  some  discretion  in  the 
matter.^     (2)  The  better  opinion  is  that  the  domicile  which  the 
lunatic  had  when  judicially  declared  to  be  insane  continues.     His 
case  has  been  likened  to  that  of  father  and  child.     There  is,  how- 
ever, no  close  resemblance  between  the  two  cases.     The  relation 
between  the  parties  is  purely  an  artificial  one,  established  for  cer- 
tain purposes,  and  may  suddenly  be  put  an  end  to  by  restoration 
to  reason.     The  father's  guardianship  is  a  natural  one,  and  in  the 
aliscnce  of  misconduct  on  his   part  continues   during   minority. 
Whether  the  committee  can  fix  the  lunatic's  domicile  or  change  it 
to  a  State  or  country  different  from  his  own,  is  not  fully  settled. 
There  are  cases  which  seem  to  hold  that  he  can,^  but  they  are 
strongly  criticised  by  Mr.  Dicey  as  unsound  in  principle.^ 

1  Wo'^tern  Cement  Co.  i;.  Jones,  8  Mo.  one  against  whom  proceedings  for  the  ap- 
Arip   373.  pointment  of  a  guardian  are  pending,  may 

2  As  to  halntual  drunkard?  in  New  so  far  cliange  his  domicile  to  another  Slate 
York,  see  Code  of  Civ.  Pro.  §§  2320,  d  scq.  as  to  give  the  latter  State  jurisdiction  of  the 
The  case  is  assimilated  to  that  of  lunacy,  original  probate  of  his  will,  and  that  the 

3  Matter  of  Perkins,  2  Johns.  Ch.  124  ;  determination  of  the  foreign  court  will  be 
Matter  of  Taylor,  9  Paige,  611  ;  Rogers  v.  given  effect  to  in  Massachusetts.  This  de- 
McLean.  31  Barb.  304  ;  Matter  of  Rous-  cision  seems  to  rest  mainly  on  the  essen- 
toun.  1  TJuss.  312.  tially    local    character    of    this    kind    of 

4  Scott  r.  Bentley,  1  K.  &  J.  281.  guardianship.     Though  conclusive  in  the 
6  As  to  discretion,  see  In  re  Gamier,     State  where  it  is  created,  it  has  uo  force 

L.  R.  13  En.  532.  elsewhere,  and  State  comity  requires  the 

6  Holyoke  v.  Haskins,  5  Pick.  20;  act  done  in  a  State  where  there  is  no 
Anderson  v.  Anderson,  42  Vt.  350.  guardianship  to  be  recognized   as   valid, 

7  Dicey  on  Domicil,  p.  132.  ev^  in   a  State  where  guardianship  ex- 
It  has  recently  been  decided  in  the  Su-     ists.      The  law  of  the  place  of  the  new 

preme  Judicial  Court  of  Massachusetts  that     domicile  thus  triumphs  in  its  own  forums 


STATUS    OF    PERSONS    OF   UNSOUND   MIND.  311 

The  court  in  the  State  where  the  property  is,  has,  by  reason  of 
its  presence,  power  to  act  in  reference  to  it,  though  the  hmatic 
may  reside  abroad, ^  The  jurisdiction  of  the  court  over  feeble- 
minded persons  does  not  necessarily  rest  upon  the  fact  that  ju- 
dicial proceedings  have  been  entered  upon  to  appoint  a  custodian 
or  curator  ;  it  is  rather  derived  from  the  fact  of  their  feebleness 
or  unsoundness  of  mind  and  the  necessity  of  their  being  cared 
for.2  The  court  may  order  an  insane  foreigner  found  within  its 
jurisdiction  to  be  returned  to  his  foreign  domicile.^ 

The  details  of  practice  as  to  the  modes  of  appointing  com- 
mittees in  lunacy  and  their  methods  of  suing  and  being  sued,  may 
be  found  in  the  books  on  Chancery  practice.  Their  power  to  con- 
tract and  to  do  other  acts  independent  of  the  commission,  will  be 
found  in  works  on  contracts  and  wills.  The  works  on  criminal 
law  must  be  consulted  in  matters  of  crime.  The  various  writers 
on  medical  jurisprudence  will  supply  valuable  information  upon 
the  theories  and  signs  of  insanity  applicable  to  all  these  branches 
of  law. 

Other  Cases  of  Incapacity.  —  Reference  may  be  made  in  this 
connection  to  the  relation  of  the  Indian  to  the  State  and  the 
United  States.  This  subject  involves  the  power  of  the  executive 
department  to  make  treaties  with  the  Indians,  as  well  as  the 
power  of  Congress  over  them  in  the  States  and  within  the  Terri- 
tories. The  only  branch  of  the  subject  to  be  considered  in  this 
connection  is  the  status  of  individual  Indians. 

It  is  settled  law,  that  so  long  as  Indians  maintain  their  tribal 
organization  and  relations,  which  may  be  termed  a  state  of  semi- 
independence  and  pupilage,  the  United  States  has  the  power  of 
controlling  them.  It  may  exercise  this  control  either  by  treaties, 
as  in  the  past,  or  by  Acts  of  Congress.*  An  Act  of  Congress 
accordingly  is  valid  which  gives  jurisdiction  to  the  courts  of  the 
Territories  over  specified  crimes  committed  by  Indians  within  the 
Territories,  or  to  the  courts  of  the  United  States  for  the  same  crimes 
committed  on  an  Indian  reservation  within  a  State  of  the  Union.^ 
A  State  has  no  power  over  such  an  Indian,  for  the  Indians,  under 

over  the  law  of  the  State  where  the  guar-  agoment  were  conferred  in  a  colony  which 

dianship  exists.     Talbot  v.  Chamberlain,  were    not    recognized    in     the    court    in 

149  Mass.  57.  England. 

1  Matter  of  Ganse,  9  Paige,  416.  3  Matter  of  Colah,  3  Daly,  529;  s.  c.  11 

2  Malin  v.  Malin,  2  Johns.  Ch.  238  ;  Abb,  Pr.  N.  s.  209  (Parsee  Merchant's 
Matter  of  Barker,  Id.  232  ;  in  re  Barlow's  Case). 

Will,  L.  R.  36  Ch.  D.  287.     In  this  last         *  United  States  v.  Kagama,  118  U.  S. 
case  there   was  no  judicial  determination     375. 
of  insanity,  but  statutory  powers  of  man-  ^  Id. 


312  THE    LAW    OF   PERSONS. 

the  conditions  mentioned,  owe  no  allegiance  to  a  State  within 
which  tlieir  reservation  may  be  established,  and  the  State  gives 
them  no  protection.^ 

The  result  seems  to  be,  that  a  tribal  Indian  can  only  be  deemed 
a  "  ])erson  "  by  force  of  some  action  of  the  United  States.  Views 
of  State  courts  on  the  capacity  of  tribal  Indians  to  sue  and  to  be 
proceeded  against  seem  to  be  overruled  or  superseded  by  this  de- 
cision of  the  United  States  court.  When  the  tribal  relation  has 
been  broken  up,  it  would  appear  that  an  Indian,  being  born  in  the 
country,  would  be  a  citizen  of  the  United  States  and  of  the  State 
where  he  resides,  and  entitled  to  all  the  rights  of  citizens.^  (a) 

The  following  points  have  been  decided  in  the  circuit  courts 
of  the  United  States.  An  Indian  is  so  far  a  "  person  "  that  he  is 
entitled  to  a  writ  of  habeas  corpus  in  the  Federal  courts  under 
the  cases  prescribed  by  law  for  the  issuance  of  that  writ.^  He 
must  be  regarded  as  a  freeman.*  A  white  man  does  not 
obtain  the  status  of  an  Indian  by  adoption  by  an  Indian  tribe, 
and  his  offspring  belong  to  the  white  race.^  An  Indian  tribe 
has  no  power  to  "  naturalize  "  a  white  man  so  as  to  make  him 
legally  an  Indian.^ 

1  United  States  v.  Kagatna,  118  U.  S.  *  Ex  parte  Eeynolds,  supra  ;  United 
375.  States  v.  Rogers,  4  How.  U.  S.  567. 

2  United  States  Const.  XI Vth  Amend-  *>  The  general  subject  of  the  "legal 
nient,  §  1.  status"  of  an    Indian  is   discussed   in   a 

3  United  States  v.  Crook,  5  Dillon,  pamphlet  published  hy  Robert  Weil,  Se- 
453.  ligman  Fellow,  in  Columbia  College,  New 

4  Ex  parte  Reynolds,  5  Dillon,  394.  York,  1889. 


(a)  But  he  is  not  a  citizen  within  the  alized,  taxed,  or  recognized  as  a  citizen 

Fourteenth  Amendment  to  the  Constitu-  either  by  the  United  States  or  by  a  State. 

tion,  even  though  he  has  abandoned  his  Elk  v.  Wilkins,  112  U.  S.  94. 
tribal  relations,  if  he  has  not  been  uatur- 


CHAPTER  X. 

MASTER    AND    SERVANT. 

This  subject  will  be  treated  in  three  principal  divisions, — 
I.  Slavery ;  II.  Apprenticeship  ;  III.  Service  arising  out  of 
contract. 

DIVISION   I.  —  Slavery. 

The  great  and  striking  feature  in  this  form  of  service  is,  that 
it  is  compulsory,  existing  by  a  mere  rule  of  law.,  without  any  ele- 
ment of  contract,  and  that  there  are  attendant  upon  it  certain 
extraordinary  facts  highly  burdensome  to  the  servant,  —  such 
as  absence  of  compensation,  unlimited  service,  feeble  restraints 
against  violence  to  the  person,  and  perhaps  the  notion  of  prop- 
erty or  ownership  in  the  master.  It  is  emphatically  a  legal, 
or  jural,  relation,  —  a  creature  of  positive  law  and  opposed  to 
natural  justice.  It  presents  important  questions  of  status  in 
reference  to  its  legal  recognition  in  other  States  where  slavery 
does  not  exist. 

An  attempt  to  give  slavery  a  rational  basis  is  found  in  the 
Roman  law.  It  was  admitted  that  it  was  contrary  to  the  law  of 
nature,  but  it  was  held  to  exist  by  the  so-called  "  law  of  nations  " 
(jus  fientiuni).  There  were  several  modes  by  which  a  free  person 
became  a  slave.  One  was  by  falling  under  the  poiver  of  a  foreign 
nation^  either  by  capture  in  time  of  war,  or  coming  into  the  pos- 
session of  a  people  with  whom  there  was  no  friendly  treaty  or 
intercourse.  Another  leading  method  was  the  case  of  a  free  per-^ 
son  of  twenty  years  of  age  and  upwards  allowing  himself  col- 
lusively  to  be  sold  as  a  slave,  with  the  intention  of  sharing  the 
price  received  by  the  seller  and  then  claiming  his  freedom.  To 
meet  this  fraud,  the  magistrate  would  adjudge  him  to  be  a  slave, 
thus  protecting  the  title  of  the  purchaser.^  Slavery  might  also 
exist  as  a  punishment  for  crime.  There  was  a  peculiarity  in  this 
case,  —  viz.,  that  the  "slave"  had  no  master.  He  was  termed  a 
slave  of  punishment  (^servus  poence).     An  instance  was  a  person 

1  Institutes  of  Justinian,  Book  I.  Title  III. 


314:  THE   LAW   OF   PERSONS. 

condemned  to  labor  in  the  mines.i  The  status  of  slavery  having 
thus  originated,  would  pass  by  birth  or  succession  to  children,  the 
general  rule  being  that  the  child  followed  the  condition  of  the 
mother,  whatever  might  be  that  of  the  father.^ 

Slavery  having  been  abolished  in  the  United  States  by  constitu- 
tional amendment,  it  is  now  a  matter  principally  of  liistorical  in- 
terest. Some  questions  of  a  legal  character  may  still  arise  as  to 
the  status  in  a  particular  State  of  a  slave  owned  elsewhere.  The 
prevailing  view  is  that  slavery,  being  contrary  to  natural  justice 
and  only  existing  by  positive  law,  has  no  claim  to  international 
recognition.  If  a  master  voluntarily  bring  his  slave  into  a  country 
where  slavery  does  not  exist,  he  becomes  free.  This  is  espe- 
cially the  case  where  the  local  law  declares  that  slavery  shall 
not  exist.  This  doctrine  was  held  very  early  in  France,  where  the 
French  court  determined  a  case  against  an  ambassador  of  Spain, 
who  had  brought  a  slave  into  France.^  The  same  point  was  ruled 
in  the  State  of  New  York  while  slavery  existed  in  this  country  as 
against  a  Kentucky  master  Avho  passed  through  New  York  in 
transitu  with  his  slaves  to  another  State.* 

The  Thirteenth  Amendment  to  the  United  States  Constitution, 
abolishing  and  prohibiting  slavery,  makes  an  exception  as  to  invol- 
untary servitude  for  crime.  It  would  appear  that  this  form  of 
"  servitude  "  might  still  be  created  by  a  State,  though  no  occasion 
has  yet  arisen  for  deciding  the  point. 

1  This  form  of  slavery  was  abolished  by  pair  his  decayed  houses,  to  pay  his  ransom 
Justinian,  Novel  22,  8.  and  also  the  four  accustomed   payments 

2  Bodin,  the  French  political  philos-  used  in  this  realm  ;  but  also  that  if  with- 
opher,  writing  in  1576,  though  trained  in  out  his  leave  they  should  change  their 
the  Roman  law,  rejmdiates  the  theory  that  dwelling-places  wherein  they  were  born, 
slavery  can  he  rested  on  captivity  in  time  he  might  lead  them  home  again  in  a 
of  war,  saying,  "  that  the  good  and  noble  halter."     KnoUes' Trans.,  1606. 

heart  would  always  rather  choose  to  die  *  Bodin,  ch.  5,  p.  42.     He  says,  "The 

honestly  than   unworthily  to  serve   as   a  slaves  of  strangers,  so  soon  as  they  set  their 

base  slave."     His  whole  treatment  of  the  foot  within  France,  become  frank  and  free, 

subject  is  masculine  and  noble.     He  gives  as  was  by  an  old  decree  of  the  court  of 

a  terrible  picture  of  the  manumitted  men  Paris  determined  against  an  ambassador  of 

of  his  day  that  is  worth  reproducing  :   "  I  Spain  who  had  brought  a  slave  with  him 

have  seen  the  lord  of  the  White  Eock  in  into  France."  In  another  case  cited  in  the 

Gascony  claim  not  only  to  have  right  over  same  connection,  he  says   "that  the  liost 

bis   manumitted   subjects,  but   also   that  o/'/'/ie  7; oifse  where  the  master  was  staying, 

they  were  bound  to  trim  his  vines,  to  till  understanding  the  matter,  persuaded  the 

his  grounds,  to  mow  his  meadows,  to  reap  slave  unto  his  liberty." 
and  thresh  his  corn,  to  carry  and  recarry  *  Lemmon  v.   The  People,   20  N.  Y. 

whatever  he  should  command  them,  to  re-  562. 


MASTER   AND   SEKVANT.  315 


DIVISION   11.  —  Apprenticeship. 

The  term  "  apprentice  "  is  generally  used  in  this  country  to 
designate  a  class  of  persons  who  labor  for  others  under  statutory 
conditions  or  requirements  in  order  to  learn  some  trade  or  voca- 
tion. An  apprentice  in  such  a  case  differs  from  a  servant  in 
this,  that  the  employment  of  the  former  is  regulated  by  positive 
rules  of  law,  while  the  obligations  of  the  latter  depend  wholly 
upon  contract.  If  there  were  no  restrictive  statutes  in  a  particu- 
lar State,  the  apprenticeship  would  be  governed  by  the  general 
rules  of  the  law  of  contracts. 

Apprenticeship  had  its  origin  in  the  Middle  Ages  in  connection 
with  membership  of  the  trade  guilds.  Many  trades  could  only  be 
practised  by  those  who  had  the  "  freedom  "  of  the  guild.  This 
could  only  be  obtained  by  an  apprenticeship  to  some  member  of 
the  guild  for  a  time  varying  according  to  local  usage.  The  num- 
ber of  persons  following  a  trade  could  thus  be  practically  limited 
by  rule.  The  rules  governing  guilds  were  rigorous.  They  pre- 
vailed in  continental  countries  as  well  as  in  Great  Britain. 

This  subject  may  be  considered  under  two  aspects :  frst,  where 
the  apprenticeship  is  created  by  mere  contract,  and  second,  where 
it  is  created  by  statute.  In  the  first  case,  assuming  that  the 
apprentice  is  a  minor,  it  would  still  be  necessary  that  he  should 
enter  into  the  contract.^  His  father  must  also  assent,  as  he  is 
entitled  to  the  child's  custody  and  his  services.  The  contract  of 
the  infant  will  not  be  void  on  account  of  his  infancy,  but  only 
voidable.  It  would  not  be  absolutely  binding  on  him,  as  it  Avould 
not  fall  within  the  class  of  necessaries.  It  is  still  plainer  that 
an  adult  could  not  be  bound  unless  he  executed  the  agreement.^ 
Should  a  father  enter  into  covenants  for  the  conduct  of  the  son, 
he  would  be  liable,  from  his  own  estate,  if  the  covenants  were 
broken.^  In  order  to  constitute  an  apprenticeship,  there  must  be 
mutual  agreements  to  teach  and  to  learn  a  trade.  A  mere  agree- 
ment on  the  one  hand  to  serve  and  on  the  other  to  supply  food, 
clothing,  and  support  will  be  a  contract  of  hiring  instead  of  an 
apprenticeship.*  In  other  respects  than  these  the  general  law  of 
contracts  may  be  resorted  to  for  rules  applicable  to  the  case. 

The  subject  of  apprenticeship  by  statute  presents  two  distinct 
cases:  one,  where  the  apprenticeship  is  voluntary  in  its  origin; 
the  other,  where  it  is  compulsory.     The  special  rules  governing 

1  Rex  V.  Annesby,  3  B.  &  Aid.  584.  prenticesliip  by  contract  is  rerotriii^ed  in 

2  Rex  V.  Ripon,  9  East,  295.  Crombie  o.  MeOratli,  139  Mass.  550. 

8  Cuming  v.  Hill,  3  B.  &  A.  59.     Ap-  *  Rex  v.  BUlinghay,  5  A.  &.  E.  676. 


316  THE    LAW    OF    PERSONS. 

this  branch  of  the  subject  were  worked  out  in  England  in  constru- 
ing a  statute  passed  in  the  reign  of  Queen  Elizabeth.^  The  English 
courts  did  not  favor  this  legislation,  applying  it  only  to  trades 
that  existed  at  the  time  of  its  enactment.  New  trades  were  left 
to  the  general  law  of  contracts.  Any  compulsory  features  of  trade 
apprenticeship  were  abolished  in  1814,  under  the  influence  of 
the  writings  of  Adam  Smith  and  his  followers.^  There  were  still 
compulsory  features  in  cases  that  might  arise  under  the  Poor  Laws. 
English  decisions  rendered  while  ap[)renticeship  was  compulsory 
will  be  useful  in  disposing  of  cases  in  this  country  involving 
apprenticeship  in  general. 

Voluntary  apprenticeship  will  be  considered  under  the  follow- 
ing heads  :  I.  Method  of  creation ;  II.  Effect  of  the  relation ; 
III.    Remedies  for  breach  of  the  agreement;   IV.    Dissolution. 

I.  Method  of  creation.  —  The  statute  of  Elizabeth  provided  that 
none  should  be  apprentices  except  minors.^  The  term  of  service 
should  in  general  be  seven  years.*  The  relation  must  be  created 
by  an  indenture  (or  instrument  under  seal).^  No  agreement  con- 
stituted an  apprenticeship  without  an  indenture.^  There  might  be 
two  or  more  masters  named  in  the  indenture.  If  one  died  during 
the  continuance  of  the  apprenticeship,  the  party  bound  would  be- 
come the  apprentice  of  the  survivor.' (a)  If  the  term  mentioned 
in  tlie  indenture  was  less  than  seven  years,  it  was  voidable  and  not 
wholly  void.^ 

The  contract  of  the  master  being  to  teach  a  trade  to  the  minor, 
it  contains  certain  implied  conditions,  —  e.  g.,  that  the  apprentice  is 
ready  and  willing  to  be  taught,^  and  also  that  he  shall  continue  in 
a  state  of  ability  to  perform  his  contract.  If  he  is  prevented  from 
doing  that  by  permanent  illness,  he  is  excused. ^'^ 

The  contract  is  personal,  and  would  regularly  terminate  with  the 
death  of  the  master. ^^  This  result  might  be  prevented  by  words  in 
the  indenture  continuing  the  apprenticeship  to  the  master's  repre- 
sentatives in  case  of  his  death. ^^     There  is  also  an  implied  con- 

1  5  Eliz.  c.  4,  §§  25-48.  8  Gray  v.  Cookson,  16  East,  13. 

2  54  Geo.  III.  c.  96.  9  Raymond  v.  Miuton,    L.   R.  1  Exch. 
8  5  Eliz.  c.  4,  §  36.                                      244. 

*  Id.  §  26.  1^  Roast  v.  Firth,  L.  R.  4  C.  P.  1. 

6  See  Id.  §§  25,  28,  30,  32,  etc.  "  Baxter  v.  Burfield,  2  Strange,  1266. 

6  Rex    V.  Margram,  5   Term    R.    153  ;  ^'^  Cooper  v.  Simmons,   7  H.  &  N.  707. 

Phelps  V.  P.  C.  &  S.  R.  R.  Co.,  99  Pa.  St.  In    case   of  a  master's   death,    his  estate 

108.  wonld   be    liable   for  the   support   of  the 

'  Rex  V.  St.  Martin's,  Exeter,  2  A.  &  E.  apprentice. 
655. 


(a)  A  contract  of  apprenticeship  is  not     talile  Co-operative  and  Industrial  Society 
invalid  by   reason    of  the    fact  tliat    the     v.  Casson  [1891],  1  Q.  B.  75. 
master  is  a  corporation.     Burnley   E^ui- 


MASTER    AND    SERVANT.  317 

dition  that  the  contract  shall  be  performed  at  the  place  where 
the  business  was  carried  on  at  the  time  of  the  execution  of  the 
indenture.^ 

Apprenticeship  is  to  be  treated  as  a  fiduciary  relation.  The 
master  cannot  assign  the  apprentice  to  another  master  by  his  own 
act.2 

11.  Effect  of  the  relation.  —  (1)  Rights  and  duties  of  the  master. 
—  It  is  common  to  insert  in  the  indentures  certain  promises  and 
obligations  which  each  of  the  respective  parties  undertakes  towards 
the  other.  A  question  of  some  dilhculty  then  arises,  whether  I 
the  failure  to  observe  these  provisions  is  vital  to  the  contract  or 
only  a  ground  of  action  for  damages  or  for  other  relief  suitable  to 
the  breach  of  that  particular  clause.  The  court  in  determining 
this  point  looks  at  the  nature  of  the  clause  violated  and  the  general 
purpose  of  the  contract.  On  the  part  of  the  master  it  would  be 
held  to  be  vital  that  he  should  continue  to  follow  the  trade  which 
he  liad  engaged  to  teach  the  apprentice. ^  The  same  rule  would  be 
applied  if  the  masters  were  partners,  and  one  of  them  should  retire.^ 
A  partial  withdrawal  from  business  might  not  have  that  effect.^ 
On  the  other  hand,  misconduct  by  an  apprentice  might  not  deter- 
mine the  relation.*^  Permanent  desertion  on  the  apprentice's  part 
would  suffice."  (a)  There  might  be  a  special  clause  in  the  inden- 
ture making  misconduct  on  the  part  of  the  apprentice  vital.^  The 
master  could  not  order  the  apprentice  to  do  an  unlawful  act,  — 
as,  for  example,  being  apprenticed  to  a  barber,  to  shave  customers 
on  Sunday.^ 

A  master  is  entitled  to  the  earnings  of  the  apprentice,  and  can 
bring  an  action  against  one  who  entices  him  away  or  harbors  him 
after  desertion. ^*^  So  the  master  might  waive  the  wrongful  act, 
and  simply  sue  the  enticer  for  the  work  and  labor  done  by  the 
apprentice.il 

(2)  Rights  and  duties  of  the  apprentice.  —  These  depend  on  the 
statute  and  the  covenants  in  his  behalf  in  the  indenture.  An 
apprentice  can  only  be  required  to  render  the  service  for  which 

1  Eaton  V.  Western,  L.  R.  9  Q.  B.  D.  '  Hughes  v.  Humphreys,  6  B.  &  C. 
(C.  A.)  636.  680. 

2  Baxter  v.  Burfield,  2  Strange,  1266.  »  AVestwick  r.  Theodor,  L.  R.  10  Q.  B. 

3  Ellen  V.  Topp,  6  Exch.  424.  224. 

*  Couchman  v.  Sillar,   22  L.  T.   N.  s.  9  Phillips  v.  Innes,  4  CI.  &  F.  234. 

480.  10  Foster  v.  Stewart,  3  M.  &  S.  191. 

5  Batty  V.  Moaks,  12  L.  T.  N.  s.  832.  "  Lightby  v.  Clouston,  1  Taunt.  112. 
8  Philips  V.  Clift,  4  H.  &  N.  168. 


(a)  It  is  a  good  defence  to  an  action     master's    service  was   an    hahitnal    thie£ 
for  breach  of  a  covenant  in  an  apprentice-     Learoyd  v.  Brook  [1891],  1  Q.  B.  431. 
ship  deed  that  the  apprentice  while  in  the 


318  THE   LAW    OF    PERSONS. 

he  was  indentured.^  He  has  a  right  to  be  treated  with  kindness. 
The  master  is,  to  a  certain  extent,  in  loco  parentis.  If  he  were 
assaulted  by  the  master,  and  hud  reasonable  ground  for  apprehend- 
ing serious  bodily  harm,  he  would  be  justified  in  leaving  the  serv- 
ice.2  The  courts  in  England  will  not  uphold  an  agreement  of 
apprenticeship  which  is  not  for  the  infant's  benefit.  Accordingly, 
a  clause  that  wages  which  would  otherwise  be  payable  to  him 
should  not  be  paid  if  the  master's  business  should  be  interrupted 
by  a  turn-out,  cannot  be  upheld,  even  though  he  is  allowed  during 
the  turn-out  to  be  employed  in  other  ways.^ 

III.  Remedies  for  hreaeh  of  the  agreement.  —  In  an  apprentice- 
ship regulated  by  statute,  the  remedies  for  breach  of  the  contract 
are  generally  to  be  sought  in  the  statute  itself.  These  are  not 
merely  the  ordinary  remedies  provided  in  contract  law,  but  are 
frequently  penal,  or  even  of  a  criminal  aspect.  Penal  legislation 
for  breach  of  contract  would  not  be  justifiable  in  case  a  servant 
were  an  adult.  The  foundation  of  such  laws  rests  in  the  infancy 
of  the  servant  and  the  power  of  the  State  under  the  parens 
patrice  doctrine  to  regulate  his  conduct  while  in  a  condition  of 
disability. 

IV.  hissolution.  —  In  England,  since  the  statute  of  54  Geo.  III. 
c.  96,  this  subject  is  placed  on  the  footing  of  contract  law.  The 
contract  will  be  dissolved  upon  any  act  on  the  part  of  one  of  the 
parties  which  substantially  defeats  the  purpose  of  the  contract.  In 
this  country,  wherever  the  old  theory  of  the  statute  of  Elizabeth 
prevails,  stringent  rules  concerning  dissolution  are  to  be  looked 
for  in  the  statute  itself.* 

Compulsory/  (or  parish)  apprenticeship  was  from  an  early  date 
based  on  an  entirely  different  theory  from  that  of  trade  apprentice- 
ship. It  was  in  substance  a  branch  of  the  Poor  Laws.  Appren- 
ticeship, in  this  aspect,  was  a  mode  of  taking  care  of  pauper 
children.  Its  compulsory  features  have  continued  down  to  the 
present  time,  notwithstanding  the  disappearance  of  the  compul- 
sory element  in  ordinary  trade  apprenticeships.  The  earliest 
statute  on  the  subject  was  passed  in  the  reign  of  Queen  Elizabeth.^ 
The  same  kind  of  legislation  was  continued  down  to  7  &  8  Vict, 
c.  101.  Such  children  are  now  bound  out  by  a  board  of  guardians 
of  a  union  or  parish,  while  the  Poor  Law  commissioners  may  pre- 


1  McPeck  V.  Moore,  51  Vt.  269.  ships  cannot  be  cancelled  or  annulled  ex- 

2  Halliwell  v.  Counsell,   38  L.  T.  N.  s,  cept  in  the  case  of  death,  or  by  the  order  or 
176.  judgment  of  the  county  or  Supreme  Court 

8  Meakin  v.  Morris,  L.  R.  12  Q.  B.  D.  for  good  cause.     Laws  of  1871,  oh.  934. 
852.  ^  43  Eliz.  c.  2,  §  5. 

*  Thus  in  New  York,  trade  apprentice- 


MASTER    AND    SERVANT.  319 

scribe  the  duties  of  the  masters  and  the  terms  or  conditions  to  be 
inserted  in  the  indentures,  though  the  rules  are  rather  treated  as 
directory  than  vital. ^  An  infant  parish  apprentice  and  his  master, 
it  would  seem,  cannot  by  mutual  consent  vacate  the  indenture.^ 

Apprentieeshij)  under  American  law.  —  In  tlie  various  .^tates  of 
the  Union  the  distinction  betvvee]i  voluntary  and  jjarish  ai)prentices 
is  substantially  recognized. 

Apprenticeship  must,  in  general,  be  created  by  indenture  in  the 
form  authorized  l)y  the  statute  of  the  State.  If  not  so  created,  it 
will  be,  in  some  States,  voidable  and  in  otliers  void.^  A  writing 
without  seal  is  not  an  indenture.*  The  courts  differ  as  to  the 
power  of  a  father  at  common  law  to  bind  out  the  child  during 
minority  without  his  consent. ^  Under  the  statutes,  he  must,  ( 
as  a  rule,  execute  the  instrument  required.^  When  the  statute 
is  complied  with,  the  articles  of  apprenticeship  are  binding  on  the 
infant.^  In  some  States  the  consent  of  the  parent  or  guardian 
is  required.  This  requirement  would  not  be  construed  to  create 
a  personal  obligation  on  the  parent's  part.^  Still,  if  the  parent  or 
guardian  executed  the  instrument,  he  might  be  personally  liable 
for  the  wrongful  acts  of  the  apprentice.  Unless  the  statute  were 
specific,  it  would  not  in  general  be  necessary-  to  name  the  par- 
ticular trade  in  which  the  apprentice  was  bound  to  serve.^ 

I.  Rights  and  duties  involved  in  the  relation.  —  As  between 
the  master  and  the  apprentice. —  (1)  There  are  commonly  in 
the  indenture  covenants  on  each  side,  —  the  master  on  his  part 
agreeing  to  teach,  and  the  servant  to  learn,  the  trade,  etc.  A 
breach  of  one  of  these  promises  does  not  necessarily  subvert 
the  relation.     The  covenants  in  that  aspect  are  independent.^^ 

'  Queen  v.    Inhab.   of  St.  Mary  Mag-  Ivins   v.    Xorcross,    3    N.   J.   Law,    97"  ; 

dalen,  2  E.  &  "B.  809.  Balch  v.  Smith,  12  N.  H.  437  ;  Pierce  v. 

2  Kincr  V.    Gwiiiear,   1   A.    &   E.   152  ;  Massenhurfi;,  4  Leigh  (Va. ),  493. 
Remarks  of  Parke,  B.  ^  Woodruff    v.    Logan,    6   Ark.    276  ; 

3  See  Lnby  y.  Cox,  2  Harr.  184;  Bolten  Kingwood  v.  Bethlehem,  13  N.  J.  Law, 
V.  Miller,  6  Ind.  262;  Tague  v.  Hayward,  221. 

25    Ind.   427  ;    Fowler    v.  Hollenbeck,    9  »  Whitmore  v.  "Whitcomb,  43  Me.  458. 

Barb.  309  ;    Brown  v.  Whitteniore,  44  N.  See  People  v.  First  Judge  of  Livingston,  2 

H.  369;  see  in  New  York,  Laws  of  1871,  Hill,  596.     See  2  R.  S.  (New  York)  154, 

eh.  93  L  §  2,  as  to  consent.     The  law  of  1871,  ch.  * 

*  Commonwealth  v.  "Wilbank,  10  Serg.  934,    requires   the   parent   to   execute   the 

&  R.  416  ;  Hall  v.  Gardner,  1  Mass.  172;  indenture. 

Squire  v.  Whipple,  1  Vt.  69.  »  Fowler  v.  Hollenbeck,  9  Barb.  309  ; 

6  Day  V.    Everett,   7  Mass.   145,   147  ;  People  v.  Pillow,  1  Sandf.  672.     The  New 

Van  Dorn  v.  Young,  13  Barb.  286  ;  Com-  York  statute  of  1871,  ch.  934,  is  very  dis- 

monwenlth  I'.  Baird,  1  Ashm.  (Pa.)  267;  tmc.t,  fitntmg  i\\^tit  shall  not  he  lan-fal  io 

United    States   v.    Bainbridge,    1    Mason,  take  the  apprentice  unless  the  statutory 

71,  78.  requirements  are  complied  with. 

6  Matter  of  McDowle,   8  Johns.  328  ;  i'^  Powers  v.  Ware,  2  Pick.  451. 


320  THE    LAW   OF    PERSONS. 

(2)  The  age  of  the  child  is  commonly  inserted  in  the  indenture. 
As  a  general  rule,  the  master  would  not  be  allowed  to  show  that 
the  age  inserted  was  not  the  true  age,^  though  the  apprentice 
would.2  (o)  The  master  has  a  right  to  the  custody  of  the  appren- 
tice, and  may  resort  to  a  Jiaheas  corpus  as  against  one  wrongly 
depriving  him  of  it,^  though  the  court  will  in  some  cases  set  the 
apprentice  free  and  leave  the  master  to  his  remedy  by  action.* 
(4)  The  master  is  entitled  to  the  earnings  of  the  apprentice,  but  not 
to  such  as  are  obtained  from  extraordinary  service  for  others,  wholly 
beyond  the  line  of  his  duties ;  as,  for  example,  salvage  money ,°  or 
bounty,^  or  prize  money.'  A  master  may  waive  this  right  by 
allowing  him  freely  to  depart  from  his  service.^  The  apprentice 
could  not  recover  from  his  master,  even  upon  a  promise  to  pay 
him,  for  extra  work  which  his  indentures  bound  him  to  perform. 
Such  a  promise  would  be  without  consideration.^  (5)  The  master 
may,  in  the  way  of  discipline,  correct  the  servant  in  a  moderate 
manner, 1^  (6)  The  relation  is  to  some  extent  purely  personal. 
Thus,  the  agreement  to  teach  ends  with  the  life  of  the  master,  and 
does  not  bind  his  representatives.  The  master  is  only  bound  to 
use  reasonable  diligence  in  giving  instruction. ^^  If  he  fails  to  do 
what  the  law  requires  of  him,  the  apprentice  may  sue  for  damages.^^ 
(7)  The  master  is  bound  to  pay  for  necessary  medical  attendance 
in  case  of  the  sickness  of  the  apprenticed^  (8)  The  master  has 
no  right  to  remove  the  apprentice  to  another  State,  unless  the  re- 
moval is  provided  for  in  the  indentui-e,  or  arises  from  the  nature 
of  the  contract,  as  in  the  case  of  an  apprentice  to  serve  at  sea.^* 
But  the  courts  of  the  State  into  which  the  apprentice  is  removed 
will,  in  their  discretion,  refuse,  on  habeas  corpus,  to  take  the 
apprentice  from  the  master.^^  When  the  master  is  sued  for  a  re- 
moval, he  may  show  in  his  defence  that  the  plaintiff  assented.^^ 
It  is  in  general  true  that  an  apprenticeship  made  in  another  State 
is  not  obligatory.     So  far  as  apprenticeship  creates  a  status  or 

^  McCutcliin   V.   Jamieson,    1  Cranch,          ^'^  Commonwealth    v.    Baiid,  1    Ashm, 

Cir.  Ct.  348;    Hooks  v.  Perkins,  Busbee,      (Pa.)  267. 

X.  C.  Law,  21.  "  Wright  v.  Brown,  5  Md.  37. 

2  Drew   V.  Peckwell,   1   E.   D.   Smith,         ^-  Adams    v.    Miller,    1    Cranch,    Cir. 
408.  Ct.  5. 

3  Conjmonwealth    v.    Beck,   1  Browne         ^^  Easley  v.    Craddock,   4  Paind.  (Va.) 
(Pa.),  277.  423. 

*  Commonwealth  v.  Harrison,  11  Mass.  "  Commonwealth  v.  Edwards,  6  Binn. 

63.  (Ba. )   202;  Commonwealth  v.  Deacon,   6 

5  Mason  v.   Blaireau,   2  Cranch,    240,  Serg.  &  R.  526  ;  Coffin  v.  Bassett,  2  Pick. 

270  ;  Randall  v.  Rotch,  12  Pick.  107.  357. 

^  Kelly  V.  Sprout,  97  Mass.  169.  ^^  Commonwealth  v.  Hamilton,  6  Mass. 

7  Car.san  v.  Watts,  3  Dong.  350.  273. 

^  T.pwis  V.  Wildman,  1  Day,  153.  16  Burdeu  v.  Skinner,  3  Day,  126. 

9  Bailey  v.  King,  1  W hart.  (Pa.)  113. 


MASTER    AND    SERVANT.  521 

condition,  it  is  local,  depending  on  gromids  of  local  policy .1  (9) 
The  master  has,  in  general,  no  right  to  assign  the  apprentice  to 
another.  The  reason  is,  that  the  relation  creates  a  personal  trust.2 
A  note  given  for  an  assignment  would,  therefore,  have  no  valid 
consideration.^  An  attempt  to  assign,  according  to  some 
authorities,  may,  however,  as  between  the  assignor  and  assignee, 
create  a  valid  contract  whereby  the  one  may  have  a  cause  of 
action  against  the  other.^  If  the  apprentice  consented  to  serve 
the  new  master,  he  might  gain  a  settlement  in  the  place  where 
the  latter  resided.  So  if  the  master  die,  the  apprentice  cannot  be 
assigned  by  his  executors.^  In  some  States  an  apprentice  bound 
by  the  overseers  of  the  poor  may  be  assigned  without  his 
consent.^ 

Rifjhts  of  the  master  as  to  third  persons.  —  The  principal  points 
that  might  be  presented  under  this  head  are,  the  right  of  the 
master  to  sue  third  persons  for  loss  of  service  caused,  e.  g.,  hv 
seducing,  enticing,  or  harboring  the  apprentice,  or  to  sue  for  his 
wages.  Two  classes  of  questions  may  arise  :  one,  as  to  his  right 
to  sue  the  third  person  on  a  contract,  and  the  other,  for  a  tort. 

As  to  actions  on  contract,  it  is  laid  down  in  some  of  the  cases 
that  the  master  can  hold  a  third  person  for  the  wages  of  an  ap- 
prentice earned  in  the  service  of  such  third  person,  whether  he 
knew  of  the  existence  of  the  apprenticeship  or  not."  Where,  how- 
ever, the  action  is  for  enticing  away  or  harboring  the  apprentice, 
it  must  appear  that  the  enticer  knew  of  the  relation.^ 

As  het'ween  the  father  and  the  master. — The  right  of  the 
father  to  sue  the  master  is  in  general  derived  from  the  cove- 
nants in  the  indenture,  —  as,  for  example,  that  the  master  will  pay 
wages.9  In  like  manner,  if  the  father  enter  into  a  covenant  for 
the  good  conduct  of  the  child,  he  will  be  personally  liable.  This 
is  but  a  common  instance  of  A.  undertaking  that  B.  shall  do  a 
particular  thing.      In  such   a   case  A.  is   responsible,  although 

i  Hines  v.  Howes,  13  Met.  80  ;  Com-  3  Allison  v.   Norwood,    Busbee,   N.  C. 

monwealth  v.  Edwards,  6  Binn.  202;  Com-  Law,  414. 

monwealth  v.  Deacon,   6  Ser^;.   &  R.  526  ;  *  Nickerson  v.  Howard,  19  Johns.  113; 

United  States  v.  Scholfield,  1  Cranch,  Cir.  Guilderland  v.  Knox,  5  Cow.  363. 
Ct.  255.  6  Commonwealth  v.  King,  4  Serg.  &  R. 

2  The  cases  to  this  effect  are  numerous.  109. 
Tucker  v.  Magee,  18  Ala.  99  ;  Huffman  v.  6  go  in  Vermont,  Phelps  v.  Culver,  6 

Rout,  2  Mete.  (Ky.)  50  ;  Hudnut  v.   Bui-  Vt.  430. 

lock,  3  A.  K.  Marsh  (Ky.),   299;  Hall  v.  ^  James  v.  LeRoy,  6  Johns.  274.      But 

Gardner,  1  Mass.   172;  Davis  i;.   Coburn,  see  Aver  v.  Chase,  19  Pick.  556  ;  Bardwell 

8   Id.    299  ;  Haudy  v.   Brown,  1  Crauch,  v.  Purrington,  107  Mass.  419. 
Cir.  Ct.  610.  8  Stuart  v.  Simpson,  1  Wend.  376. 


9  Caden  v.  Farwell,  98  Mass.  137. 


21 


322  THE   LAW    OF   PERSONS. 

he  has  no  available  mode  of  compelling  B.  to  do  the  thing  in 
question.^ 

As  between  the  father  and  the  apprentice,  if  the  relation  has 
been  legally  constituted,  the  right  to  custody,  discipline,  wages, 
etc.,  is  lost.  He  cannot  sue  for  the  seduction  of  a  daughter,  for  he 
is  no  longer  entitled  to  her  services.^  It  may  be  added  that  the 
status  of  the  apprentice  is  fixed  by  that  of  the  master.  He  cannot 
change  his  domicile  by  his  own  act.'^ 

n.  Dissolution. — The  apprenticeship,  in  the  absence  of  an 
opposing  statute,  can  be  dissolved  by  mutual  consent.  It  may 
also  be  dissolved  by  act  of  the  government,  —  as,  for  example, 
by  an  enlistment  in  the  army.  The  employment  by  the  govern- 
ment constitutes  a  personal  contract  with  the  soldier,  and  a  prior 
apprenticeship  must  give  way.*  Statutes  frequently  provide  a 
mode  of  dissolution  by  the  medium  of  a  resort  to  the  action  of 
magistrates  or  of  a  court.^ 

III.  Compulsory  appre7iticeship  under  the  Poor  Laws.  —  The 
system  of  taking  charge  of  pauper  or  destitute  children  is  ex- 
tensively prevalent  in  this  country.  The  methods  of  taking  charge 
of  such  children  are  various.  In  some  States,  courts  of  probate 
have  charge  of  them.^ 

In  one  State  a  Court  of  Chancery  has  charge  of  such  cases.''^ 
In  other  States  it  is  the  overseers  of  the  poor.  In  New  York 
various  modes  prevail,  depending  upon  special  and  local  stat- 
utes, conferring  the  authority  upon  orphan  asylums,  juvenile 
asylums,  reformatories,  etc.  In  some  instances,  institutions  of 
this  kind  have  statutory  power  under  certain  regulations  to  bind 
out  cliildren  resident  in  New  York  in  other  States  of  the  Union. 
This  kind  of  legislation  has  been  decided  to  be  valid  as  to  the 
Juvenile  Asylum  in  the  city  of  New  York.^ 

The  power  conceded  in  New  York  to  reformatory  societies  to 
apprentice  pauper  and  truant  children  particularly  to  employers 
in  other  States  in  the  agricultural  districts,  has  proved  highly 
beneficent  in  its  practical  workings.  It  is  for  the  interest  of  the 
public  that  the  statute  should  receive  a  liberal  construction  in 
favor  of  the  institution  acting  in  good  faith  for  the  welfare  of 
the  child. 

1  Mead  v.  Billings,  10  Johns.  99  ;  Bull  «  Spears  v.  Snell,  74  N.  C.  210  ;  Bal- 
i?.  Follett,  5  Cow.  170  ;  Woodrow  v.  Cole-  lerger  v.  McLain,  54  Ga.  159  ;  Cockran  v. 
man,  1  Cranch,  Cir.  Ct.  171.  State,  46  Ala.  714. 

2  Dain  v.  Wycoff,  7  N.  Y.  191.  7  Howry  v.  Calloway,  48  Miss.  587. 

8  Maddox  v.  State,  32  Ind.  111.  8  Matter  of  Forsyth,  66  How.  Pr.  180 ; 

*  Johnson  v.  Dodd,  56  N.  Y.  76,  81.  People  v.  New  York  Juvenile  Asylum,  2 

5  See  in  New  York  Laws  of  1871,  ch.  N.   Y.  Supreme   Ct.  K.   (T.    &  C.)  475; 

934,  §  4.  affirmed  in  59  N.  Y.  629. 


MASTER   AND   SERVANT.  323 


DIVISION  III.  —  The  Laiv  of  Master  and  Servant,  as  arising 

out  of  Contract. 

Under  this  general  head  will  be  considered  the  ordinary  case 
of  master  and  servant,  as  well  as  acts  of  service  where  the  tech- 
nical relation  of  "master  and  servant"  does  not  exist. 

Section  I.  The  Relation  itself  —  It  is  first  necessary  to  distin- 
guish the  relation  of  master  and  servant  from  other  relations 
wherein  acts  of  service  are  rendered. 

(1)  The  great  and  fundamental  distinction  between  a  servant 
and  an  agent  is,  that  the  former  is  principally  employed  to  do  an 
act  for  the  employer,  not  resulting  in  a  contract  between  the 
master  and  a  third  person,  while  the  main  office  of  an  agent  is  to 
make  such  contract.  Servants  may  make  contracts  incidentally, 
while  agents  may  in  the  same  way  render  acts  of  service.  The 
principal  distinction  between  them,  however,  is  as  above  stated. 

(2)  It  is  important  to  distinguish  between  a  servant  and  a 
contractor.  Here  there  is  not  necessarily  any  difference  in  the 
thing  to  be  done ;  it  is  in  the  mode  of  doing  it.  Thus,  a  canal 
company  might  excavate  the  bed  of  its  canal  either  by  employing 
servants  or  contractors.  The  leading  distinction  is,  that  the  con- 
tractor follows  an  independent  employment,  and  works  for  the 
particular  person  employing  him  as  he  would  for  any  other  person 
having  work  of  a  similar  kind  to  be  done.  As  a  rule,  a  contractor 
only  stipulates  that  he  will  accomplish  a  certain  result  or  end, 
and  the  employer  cannot  control  tiie  mode  of  attaining  it,  while 
the  master  of  a  servant  can  direct  the  means  as  well  as  the  end.i 
Still,  there  may  be  cases  where  a  person  usually  exercising  an 
independent  employment  may  for  the  time  being  act  as  a  servant. 
In  this  case,  if  the  course  of  conduct  is  in  accord  with  the  usual 
action  of  servants,  the  contractor  will  be  treated  for  legal  purposes 
as  a  servant. 

(3)  It  may  be  conceded  in  a  particular  case  that  a  person  is  a 
servant,  and  yet  it  may  be  doubtful  to  which  of  two  supposable 
masters  he  is  attached  as  servant.  Thus,  it  has  been  decreed  to 
be  a  difficult  point  to  determine  mastership  in  a  case  where  A. 
snpplied  a  pair  of  horses  and  a  driver  to  B.,  wlio  owned  a  carriage, 
and  the  driver,  while  driving  the  horses  and  carriage  in  which  B. 
was  at  the  time,  by  negligence  injured  C.  The  solution  of  the 
difficulty  is  found  by  ascertaining  who  selected  the  driver,  who 
paid  him  his  wages,  and  under  whose  control  he  regularly  was 
while  acting  in  that  capacity.     A.,  in  the  case  supposed,  would 

1  See  Forsj'th  r.  Hooper,  11  Allen,  419. 


324  THE   LAW    OF    FERSONS. 

accordingly  be  his  master.  In  general,  one  may  be  in  the  employ- 
ment of  one  person,  and  by  his  consent  render  acts  of  service 
to  another  without  becoming  in  any  legal  sense  the  servant  of 
the  latter. 

(4)  There  is  a  distinction  between  the  relation  of  master  and 
servant  and  that  of  one  who  simply  performs  acts  of  service  for 
another.  The  expression  "  an  act  of  service  "  may  have  a  broad 
meaning,  and  include  many  cases  not  embraced  in  the  strict 
relation  of  master  and  servant.  Thus,  a  physician  in  compound- 
ing a  prescription,  or  an  attorney  in  drawing  a  deed,  renders  an 
act  of  service,  though  the  facts  scarcely  create  the  ordinary  rela- 
tion of  master  and  servant.  It  is  not  easy  to  draw  the  line 
with  exactness.  Some  leading  elements  in  difficult  cases  may  be 
noted.  An  important  circumstance  is  that  the  alleged  servant 
performs  a  series  of  acts  of  service  for  the  same  person  of  the 
same  general  kind.  Another  leading  fact  is  that  the  alleged  ser- 
vant renders  services  exclusively  to  a  particular  employer.  Thus, 
if  one  should  have  a  horse  shod  by  a  blacksmith  on  a  single 
occasion,  it  would  not  be  a  case  of  master  and  servant ;  yet  if  the 
man  gave  his  entire  time  for  a  fixed  period  to  shoeing  an  em- 
ployer's horses,  tlie  relation  thus  constituted  might  be  close  to 
that  of  master  and  servant. 

Again,  if  one  who  was  alleged  to  be  a  servant  had  a  large  dis- 
cretion in  the  mode  of  performing  his  duties,  —  as,  for  example,  if 
he  followed  a  profession,  —  he  could  not  be  properly  regarded  as 
a  servant  in  the  ordinary  meaning  of  the  word. 

The  question  whetlier  one  is  in  a  legal  sense  a  servant  will 
become  highly  important  when  it  is  sought  to  hold  an  alleged 
master  responsible  for  the  negligent  acts  of  the  supposed  servant, 
under  the  rule  of  respondeat  superior^  to  be  hereafter  considered. 

(5)  The  distinction  between  a  servant  and  a  partner  is  a  ques- 
tion which  frequently  arises  in  commercial  law,  where  it  is  claimed 
that  one  apparently  a  servant  has  become  a  partner  with  his 
employer  on  the  ground  that  he  has  participated  in  the  profits  of 
the  business.  The  general  rule  is  that  if  iho.  relation  is  one 
usually  occupied  by  a  servant,  its  nature  is  not  changed  by  the 
fact  that  the  employee  is  paid  for  his  services  from  the  profits. 
The  details  of  this  point  belong  to  the  law  of  partnership. 

(6)  An  interesting  question  sometimes  arises,  whether  a  ser- 
vant having  a  specific  duty  assigned  to  him,  can,  by  employing  a 
sub-servant  or  associate  to  aid  him,  without  the  knowledge  or 
assent  of  his  employer,  render  the  latter  liable  for  the  negligent 
acts  of  the  sub-servant,  injurious  to  third  persons.  The  correct 
principle  would  seem  to  be,  that,  if  the  act  to  be  done  would 


MASTER   AND   SEliVANT.  325 

fairly  require  the  assistance  of  another,  the  authority  to  obtain  it 
might  be  presumed  to  be  delegated  to  the  servant,  otherwise  not.^ 

The  relation  between  master  arid  servant  a  jjersonal  one.  — 
This  relation  is  clearly  personal  and  is  not  assignable.  Ou  the 
death  of  either  party,  the  relation  is  at  an  end.  It  is  not  sub- 
verted from  the  beginning,  but  ceases  to  exist  for  the  future.^ 
The  servant's  representatives  may  recover  for  the  services  actually 
rendered.^  The  theory  is  that  there  is  an  implied  term  or  con- 
dition in  the  contract  that  it  shall  only  be  entire  if  the  capacity 
to  render  the  service  continues.  A  similar  principle  would  be 
applied  if  the  servant  were  permanently  disabled.^  Temporary 
incapacity  does  not  terminate  the  contract.^ 

The  relation  must  exist  before  the  act  of  service  is  performed. 

—  The  character  and  duties  attaching  to  the  employment  must 
regularly  be  known  and  defined  in  advance  of  the  acts  of  ser- 
vice, and  the  servant  who  is  to  perform  them  is  selected  ac- 
cordingly. This  is  particularly  the  case  where  the  claim  is  that 
an  alleged  master  is  liable  to  third  persons.  Accordingly,  the 
English  court  refused  to  recognize  the  existence  of  the  relation 
in  a  case  where  a  chairman  of  a  public  meeting,  having  general 
power  to  preserve  order,  used  words  to  the  effect  that  persons 
creating  a  disturbance  should  be  brouglit  to  the  front,  and  certain 
persons  were  mistakenly  seized  by  the  stewards  of  the  meeting 
and  brought  forward.  The  court  said  that  the  chairman  was  not 
liable  for  injuries  received  by  these  persons,  on  the  ground  that 
the  relation  of  master  and  servant  did  not  exist  between  him  and 
the  stewards,  and  the  words  used  did  not  authorize  the  latter  to 
exercise  their  judgment  so  as  to  make  the  chairman  liable  for 
damages.^  This  proposition  does  not  prevent  a  subsequent  ratifi- 
cation by  an  alleged  master  of  the  acts  of  one  who  conducts  him- 
self as  his  servant  without  authority,  though  such  a  ratification 
will  only  be  binding  on  the  master  when  made  with  full  knowl- 
edge of  the  facts. 

Section  II.  Rights  and  Duties  involved  in  the  Relation  as  be- 
tiueen  the  Parties.  —  I.  The  duties  of  the  servant  towards  the  master. 

—  (1)  The  first  duty  is  to  continue  in  the  master's  service  during 

1  The  case  of  Althorf  v.  Wolfe,  22  IST.  Y.  for  the  act  irrespective  of  the  relation  of 

355,  seems  at  first  sight  to  go  still  further,  master  and  servant.     So  interpreted,  the 

and  to  allow   a   recovery   simply   on  the  decision  seems  correct, 

ground  that  the  servant  employed  a  sub-  -  Farrow  v.  Wilson,  L.  R.  4  C.  P.  744. 

servant,  p.  361.      The  drift  of  the  reason-  3  Stul.bs  v.  Holywell  Ry.  Co.,  L.  R.   2 

ing  in  that  case,  however,  is  that  it  was  the  Exch.  311. 

duty  of  the  master  as  owner  of  fixed  prop-  *  Wolfe   v.    Howes,    20    N.    Y.    197  ; 

erty,  such  as  real  estate,  to  see  that  the  ice  Spalding  v.  Rosa,  71  Id.  40. 

upon  his  roof  should  not  be  cast  therefrom  ^  Cuckson  v.  Stones,  1  Ell.  &  Ell.  243. 

upon  one  passing  by,  and  that  he  was  liable  ^  Lucas  v.  Mason,  L.  R.  10  Exch.  251. 


326  THE   LAW   OF   PERSONS. 

the  employment.  This  duty  varies  with  the  term  of  the  hiring; 
This  may  be  indefinite  or  for  a  fixed  period,  —  c.  g.,  for  a  year  cer- 
tain. An  indefinite  hiring  is  presumed  by  the  English  courts  to  be 
for  a  year.i  ^^i^^  ^.^\q^  however,  is  not  an  inflexible  one.^  This  rule 
does  not  prevail  in  this  country.  To  constitute  a  strict  yearly 
hiring,  the  time  must  be  fixed,  {a)  Assuming  that  the  hiring  is  for 
a  fixed  period,  at  a  specified  salary,  the  servant  must  work  for  the 
entire  period,  unless  prevented  from  doing  so  by  the  act  of  the 
master,  in  order  to  recover  anything.  This  is  called  the  principle 
of  the  "entirety  of  the  contract."  The  rule  will  be  the  same 
though  a  monthly  or  other  periodical  rate  be  named  for  the  pay- 
ment of  wages.  The  naming  of  a  monthly  rate  in  a  hiring  for  a 
year  is  deemed  to  be  but  a  method  of  arriving  at  the  annual  wages. 
If,  however,  the  wages  be  payable  monthly,  and  the  time  of  hiring 
is  for  a  longer  period,  —  e.  g.,  a  year,  —  wages  will  be  earned  at  the 
expiration  of  each  month,  and  can  be  collected.  This  case  is  a 
composite  one, —  an  annual  hiring  with  monthly  payment  of  wages. 
The  contract  would  still  be  entire  as  to  all  compensation  unearned 
at  the  time  of  any  breach  of  it  by  the  servant. 

Another  view  as  to  the  "  entirety  of  the  contract "  has  been 
broached  in  a  few  decisions.  This  is,  in  substance,  that  though  the 
servant  wilfully  and  without  cause  leaves  before  his  term  expires, 
and  before  wages  are  earned  under  the  contract,  he  ought  to 
recover  the  value  of  the  services  actually  rendered.  This  view 
would  confound  the  rescinding  of  a  contract  with  the  hreacli  of  it. 
When  an  express  contract  is  rescinded  by  mutual  consent,  there 
is  room  for  the  theory  that,  as  the  express  contract  is,  out  of  the 
limy,  a  contract  may  be  implied  on  the  part  of  the  master  to  pay 
the  reasonable  vahie  of  the  services.  But  when  the  express  con- 
tract is  simply  broken  by  the  servant,  it  remains  outstanding  at 
the  election  of  the  master  as  a  broken  contract,  but  still  a  subsist- 
ing one.    There  is  no  room  for  an  implied  contract  in  such  a  case.^ 

(2)  The  next  duty  of  the  servant  is  to  have  sufficient  skill  to 
perform  the  service  undertaken  by  him.  If  he  hires  himself  out 
as  a  house  painter,  he  tacitly  affirms  that  he  knows  the  business 
according  to  the  average  skill   and  ability    of   house   painters.* 

1  Fawcett   v.  Cash,  5  B.  &    Ad.   904  ;  3  Nelichka  v.   Esterly,  29  Minn.  146  ; 

Beeston  v.  Collyer,  4  Bing.  309.  Kohn  v.  Fandel,  Id.  470. 

'^  Fail-man  v.  Oakford,  5  H.  &  N.  635.  <  Searle  v.  Ridley,  28  L.  T.  N,   s.   411. 


(rt)  If,  however,  one  enter  the  employ  of  have  assented  to  a  continuance  of  the  con- 

another  under  a  contract  for  a  year's  service  tract  for  another  year  at  the  same  salary, 

at  a   yearly  salary,  and  continue  in  the  Adams  v.  Fitzpatrick,  125  N.  Y.  124,  and 

eni])loyment  after   the  expiration   of  the  cases  cited, 
year,  the  presumption  is  that  the  parties 


MASTER    AND    SEilVANT.  327 

Much  more  will  this  be  true  if  he  expressly  affirms  that  he  pos- 
sesses the  skill,  etc.^  Want  of  the  requisite  skill  is  a  case  of  failure 
of  consideration,  so  that  it  may  be  reasonably  said  that  there  is  no 
contract.^  He  may,  accordingly,  be  discharged  on  that  ground 
alone. 

(3)  It  is  the  duty  of  the  servant  to  refrain  fi'om  acts  of  mis- 
conduct which  would  substantially  subvert  the  object  of  the  con- 
tract. Misconduct  on  his  part  is  governed  by  much  the  same 
]n-inciple  as  that  of  incompetency.  If  it  is  of  such  kind  as  sub- 
stantially to  defeat  the  object  of  the  contract,  the  servant  has  no 
valid  claim  to  continue  in  service,  and  he  may  be  lawfully  dis- 
charo-ed.  The  misconduct  intended  is  either  moral  misconduct,^ 
wilful  disobedience,  impertinence,  or  habitual  neglect.*  If  a  good 
cause  of  discharge  exists,  the  master  may  avail  himself  of  it  as  a 
defence,  even  though  he  did  not  know  of  it  at  the  time.^  Some 
acts  which  have  been  held  to  be  sufficient  grounds  for  discharge 
are  cited  in  a  note.^ 

(4)  The  servant  is  under  an  obligation  to  respond  in  damages  to 
his  master  for  all  injuries  done  the  latter  by  breach  of  duty.  This  is 
a  remedy  additional  to  the  right  of  discharge.  Where  the  master 
has  been  caused  to  respond  to  a  third  person  in  damages,  he  will 
in  turn  have  a  remedy  over  against  the  servant.  So  the  master 
may  notify  the  servant  to  appear  and  defend  any  action  brought 
against  himself  on  that  account ;  such  a  course  will  make  the 
judgment  binding  on  the  servant,  whether  he  actually  pays  atten- 
tion to  the  notice  or  not."  (a) 

II.  The  duties  of  the  master  toivards  the  servant.  —  (1)  The 
first  duty  is  to  continue  him  in  service  where  not  in  fault,  and 
to  pay  his  stipulated  wages.     This  duty  becomes  more  apparent 

1  Harmer  v.  Cornelius,  5  C.  B  N.  s.  without  leave.  Turner  v.  Mason,  14  M.  & 
236.  W.  112.    Assuming  to  be  a  partner     Amor 

2  ij_  V.  Fearon,  9  A.  &  E.  548.      Impertinence. 

3  Singer  v.  McCormick,  4  W.  &S.  265.  Ridgway  v.  Hungerford  Market  Co.,  3  A. 
*  CalTo  V.  Brouncker,  4  C.  &  P.  518.  &  E.  171.  Immorality.  Atkin  i-.  Acton, 
6  Willets  V.  Green,  3  C.  &  K.  59.  4  C.  &  P.  208.  Breach  of  duty  as  to  man- 
6  Habitual    intoxication.     Gonsolisr.  agement  of  business.    Smith  r.  Thompson, 

Gearhart,    31  Mo.  585.     Refusal  to   obey  8  C.  B.  44;  Bray  v.  Clinndler,  18  Id.  718. 

orders.     Churchward  v.  Chambers,  2  F.  &  ^  Chicago  City  v.  Robbins,  2  Black  (U. 

F.   229  ;  Spain  v.  Arnott,   2  Stark.  256  ;  S.)  418  ;  Robbins  v.  Chicago  City,  4  Wall. 

Raileyy.  Lanahan,  34  La.  Ann.  423.      In  657;  Veazie  v.  Penobscot  R.  R.    Co.,    49 

some  cases  it  has  been  held  that  it  must  be  Me.  119  ;  City  of  Portland  v.  Richardson, 

shown  that  disobedience  was  wilful  or  that  54  Me.  46.    These  cases  are  not  strictly  in 

it  occasioned  a  loss  to  the  master.    Cussons  point,  but  establish  the  rule  stated  in  the 

V.   Skinner,    11  M.  &  W.   161.     Absence  text  in  analogous  cases. 


(«)  The  servant  is  also  under  a  duty     ing  the  course  of  his  employment.     Merry- 
not  to  disclose  trade  secrets  acquired  dur-     weather  v.  Moore  [1S92J,  2  Ch.  518. 


328  THE    LAW    OF    PERSONS. 

when  the  hiring  is  for  a  fixed  period.  If,  in  such  a  case,  the  ser- 
vant is  wrongfully  discharged  by  the  master  without  being  per- 
mitted to  earn  wages,  a  leading  remedy  is  not  to  sue  for  "  wages," 
but  for  damages  for  a  wrong-ful  discharge.  There  are  three  pos- 
sible remedies  in  such  a  case  :  one  is,  if  wages  are  actually  earned, 
to  sue  for  wages  as  such;  another,  if  they  have  not  been  earned,  is 
to  sue  for  not  being  permitted  to  earn  wages ;  a  third,  to  rescind 
the  contract,  and  to  sue  for  the  value  of  the  services  actually 
rendered  up  to  the  time  of  the  wrongful  discharge.  This  last  is 
called  a  quantum  meruit.  The  first  and  second  remedies  princi- 
pally require  elucidation. 

An  illustration  will  make  the  meaning  plain.  A.  makes  a  con- 
tract with  B.  to  serve  at  a  specified  salary,  payable  montldy  (say 
8100  per  month),  for  two  years  commencing  January  1st,  1889. 
Having  served  two  months  and  ten  days,  A.  is  wrongfully  dis- 
charged. He  has  for  the  two  months  a  cause  of  action  for  wages  ; 
for  the  twenty-two  months  he  has  no  cause  of  action  for  wages,  but 
a  single  indivisible  cause  of  action  for  damages  for  not  being  per- 
mitted to  work.  Should  he  essay  to  divide  this  last  claim  into 
parts,  and  to  sue  monthly  for  a  corresponding  portion  of  the  sum 
payable  during  the  entire  period,  a  recovery  of  a  judgment  in  one 
action  would  be  a  bar  to  all  further  actions,  owing  to  a  rule  that  a 
single  cause  of  action  is  in  law  indivisible.  This  is  stated  as  the 
better  opinion,  though  the  cases  are  not  absolutely  harmonious.^ 

One  of  the  principal  consequences  of  this  theory  is,  that  the 
servant  in  suing  for  damages  must  make  it  appear  that  what  he 
claims  is  attributnble  to  the  wrongful  act  of  the  master.  Accord- 
ingly, he  must  have  used  reasonable  diligence  to  obtain  employ- 
ment elsewhere  of  the  same  general  kind.  Want  of  reasonable 
diligence  in  this  respect  may  diminish  his  claim,  if  not  defeat  it 
altogether.2  He  is  not  l)ound  to  look  for  or  accept  employment 
of  another  kind.^ 

(2)  The  master  must  use  due  care  in  providing  the  servant  with 
suitable  tools  and  instruments  of  labor,  and  in  affording  him 
reasonably  safe  means  of  ingress  and  egress  to  and  from  the  place 
of  labor.     He  does  not  absolutely  warrant  that  the  tools  so  fur- 

1  The  leading  authorities  favoring  the  ^  This  is  a  general  rule  applicahle  to  the 
view  in  the  text  are  Fewings  v.  Tisdal,  law  of  damages  and  not  peculiarly  to  be 
1  Exch.  295  ;  Eldertnn  v.  Emmens,  6  C.  B.  referred  to  contracts  of  service,  though  it  is 
160  ;  on  appeal,  4  H.  L.  Cas.  624,  645  ;  often  presented  there.  Howard  v.  Dal_y, 
Goodman  v.  Pocock,  15  Q.  B.  576 ;  Beck-  61  X.  Y.  362,  371  ;  Emmens  v.  Elderton, 
ham  V.  Drake,  2  H.  L.  Cas.  579,  606  ;  4  H.  L.  Cas.  624,  646  ;  Costiiran  i-.  Mo- 
Moody  V.  Leverich,  4  Dalv,  401  ;  Howard  hawk  &  H.  R.  R.  Co.,  2  Den.  609  ;  John- 
V.  Daly,  61  N.  Y.  362  ;  Chamherlin  v.  Me-  son  v.  Meeker,  96  N.  Y.  93,  97. 
Callister,  6  Dana(Ky.),  352;  Weed  r.  Burt,  3  fuchs  v.  Koerner,  107  X.  Y.  529. 
78  X.  Y.  191. 


MASTER   AND    SEKVAXT.  329 

nished  shall  be  sound,  but  he  does  agree  to  use  all  reasonable 
means  to  test  their  soundness,  and,  in  general,  to  exercise  due 
care  to  secure  the  safety  of  his  servants  while  engaged  in  his  ser- 
vice.i  (a)  Thus,  he  should  use  approved  tests  to  ascertain  the 
quality  of  his  machines  ;2  he  should  see  that  the  machinery  is 
appropriate  for  the  purpose  for  which  it  is  used ;  he  should  not 
permit  it  to  be  used,  where  dangerous  in  its  nature,  without  proper 
guards; 3  he  should  not  set  it  in  motion  without  notice,  to  the 
servant's  injury,  while  he  is  at  work  upon  it.*  In  constructino- 
machinery,  he  must  employ  competent  persons.  If  he  does  that, 
he  will  not  be  liable,  if  the  construction  be  defective,  so  long  as 
he  is  not  aware  of  it.^ 

The  enumerations  above  made  sufficiently  disclose  the  principle 
governing  the  master's  liability.  There  must  be  no  neglect  on  the 
master's  part.  Notice  of  defects  in  tools,  etc.,  or  knowledge  of  them, 
thus  becomes  material.  Thus,  should  he  in  the  outset  provide 
machinery  of  a  stanch  and  appropriate  kind,  and  it  should  become 
worn  by  use  so  as  to  be  unsafe,  it  would  be  important  to  show  that 
he  knew  of  its  defective  condition  and  did  not  repair  it.  This 
would  be  evidence  of  negligence  on  his  part.  As  a  broad  state- 
ment, he  might  be  liable  for  negligence  as  to  an  unsound  article 
which  he,  knowing  its  unsound  state,  intrusted  to  the  servant  as 
a  means  of  rendering  service.  So  personal  interference  by  the 
master  with  the  work  may  make  him  liable,  —  as  where  he  directs  it 
to  be  done  in  a  particular  manner,  which  turns  out  to  be  unsafe.^ 
In  general,  his  duty  is  performed  when  he  furnishes  suitable  tools 
and  implements  of  labor,  unless  there  is  some  defect  in  them  which 
he  does  not  remedy.  Dulness  in  an  instrument  requiring  an  edge 
is  not  of  itself  a  defect,  where  the  master  supplies  means  of  sharp- 
ening it,  even  though  the  servant  intrusted  with  the  duty  of 
sharpening  it  is  neglectful  in  discharging  it.^ 

1  Paterson  v.  Wallace,  1  .Macq.  H.  of  *  Watling  v.  Oastler,  L.  R.  6  Exch.  73. 
L.  Cases,  748;  BryJon  v.  Stewart,  2  Id.  ^  Potts  f.  Port  Carlisle  Dock&Rv.  Co., 
30.  2  L.   T.    N.  s.  283  ;  Stringliam  v.  Hilton, 

2  Murphy  u.  Phillips,  35  L.   T.  x.  s.  Ill  X.  Y.  188. 

477.  6  Eoberts  v.   Smith,   2  H.   &  N.  213  ; 

3  "Weems  i-.  ilathieson,  4  Macq.  H.   of    Clarke  v.  Holmes,  7  H.  &  N.  937. 

L.  Cases,  215.  "  "Webber  r.  Piper,  109  X.  Y.  496. 

(n)  The  principle  is  well  stated  in  the  tions  where  the  necessity  for  such  a  precau- 

foUowing  cases;  Carlson  i".  Phnenix  Bridge  tion  may  reasonably  be  foreseen.     Ford  v. 

Co.,  132  N.  Y.  273  ;  Kern  v.  De  Castro  &  Lake   Sliore  &  Jlich.  Southern  Ry.,  124 

Donner   Sugar  Ref.    Co.,  125  X.   Y.   50  ;  X.  Y.  493  ;  Abel  v.   Pres.  etc.  Del.  Canal 

Augerstein  i\  Jones,  139  Pa.  St.  183;  Hig-  Co.,  128  N.   Y.   662;  Morgan  v.  Hudson 

gins  V.  The  Mo.  Pac.  Ry.  Co.,  43  Mo.  App.  River  Ore  &  Iron  Co.,    133  X.   Y.  666  ; 

547.     So  it  is  the  duty  of  the  employer  to  Berrigan  v.  X.  Y.  Lake  Erie  Ry.  Co.,  131 

provide  for  the  safety  of  his  servants  by  the  X.  Y.  582. 
establishment  of  proper  rules  and  regula- 


330  THE    LAW  OF   PERSONS. 

To  this  whole  doctrine  of  the  master's  liability  there  is  a  very 
important  qualification.  The  servant  must  not  himself  be  negli- 
gent in  such  a  way  as  to  contribute  to  the  injury.  Such  negligence 
is  termed  "  contributory,"  and  it  is  fatal  to  recovery.  For  example, 
if  the  staff  of  a  railway  company  was  not  sufficient,  one  who 
worked  for  it  with  knowledge  of  the  insufficiency  could  not  recover 
for  an  injury  directly  attributable  to  it.^  So  if  he  were  using  a 
machine  known  to  be  unsafe,^  or  working  on  a  railway  track  in 
a  highly  dangerous  and  dark  place  without  a  light,  or  signal  from 
passing  trains,  and  without  any  slackening  of  speed  by  a  train  as 
it  passed  him.^ 

This  rule  may  be  qualified  by  the  fact  that  the  servant  has  com- 
plained of  the  defect  in  the  tools,  etc.,  and  the  master  has  promised 
to  make  speedy  repairs,  and  the  servant  has  continued  his  work 
temporarily  in  reliance  upon  this  promise.  The  exact  limits  of 
this  last  proposition  are  not  yet  clearly  defined  in  the  cases.*  In 
fine,  the  knowledge  of  the  master  and  the  want  of  knowledge  on 
the  servant's  part  together  constitute  the  cause  of  action,  and  it  is 
necessary  for  the  servant  to  allege  and  prove  both.^ 

(3)  The  master  must  use  reasonable  care  and  diligence  in  the 
selection  of  co-servants,  and  should  discontinue  the  employment 
of  negligent  and  incompetent  co-servants  when  the  negligence  and 
incompetence  is  known  to  him.  The  ground  of  liability  in  this  case 
is  not  that  the  technical  relation  of  servant  and  co-servant  exists. 
It  is  the  broad  principle  that  the  master  must  not  be  negligent  in 
performing  that  which  he  has  undertaken  with  a  servant  to  do. 
As  the  master  cannot  in  general  superintend  personally  the  work 
and  co-operate  with  his  servant,  where  co-operation  is  needful,  he 
tacitly  agrees  to  use  due  care  in  selecting  proper  and  competent 
persons  to  act  in  his  stead.  If  he  does  this,  and  these  associates 
in  labor  are  guilty  of  negligence,  it  is  not  the  negligence  of  the 
master.  A  master  accordingly  does  not  vjarrayit  the  competency 
of  his  servants.*^  He  does,  however,  undertake  to  use  reasonable 
skill  in  selecting  them.'^ 

1  Skipp  V.  E.  C.  Railway  Co.,  9  Exch.  pan.y,  L.  R.  12  Q.  B.  Div.  493  ;  (on  ap- 
223.  peai)  13  Id.  259. 

2  Dynenr.  Leach,  26  L.  J.  Exch.  n.  s.  6  Wilson  v.  Merry,  L.  R.  1  Sc.  App. 
221.  Cas.    326.     Though    this    was    a    Scotch 

8  Woodley  v.  Metropolitan  Railway  Co.,  Appeal,  the  principles  are  the  same  on  this 

L.  R.  2  Exch.  Div.  384.  point  as  in  English  law,  p.  334.      See  also 

*  See  Holmes  v.   Worthington,  2  F.  &  Bartonshill    Coal    Company    v.     Reid,    3 

F.   533  ;    Holmes  v.  Clarke,  6   H.  &  N.  Macq.  H.  L.  Cas.  282,  for  a  luminous  ex- 

349;  (on  appeal)  9  L.  T.  N.  s.  178.     But  position   by  Lord  Cranworth  ;  Tarrant 

cf.  Assopr.  Yates,  2  H.  &  N.  768  ;  Griffiths  v.  Webb,  18  C.  B.  797  ;  Wiginore  v.  Jay,  5 

V.  Gidlow,  3  Id.  648  ;  Smith  v.  Dowell,  3  Exch.  354. 
F.  &  F.  238.  ^  Wiggett  v.  Fox,  11   Exch.  8-32,  and 

^  Griffiths  V.  London,  &c.  Docks  Com-  cases  supra.      The   cases    are    extremely 


MASTER   AND    SEKVANT.  331 

When  due  care  in  selection  has  been  exercised,  the  master  is  nut 
responsible  for  an  injury  done  by  the  carelessness  of  one  servant  to 
another,  where  the  two  are  engaged  in  a  common  employment.  An 
action  can  only  be  brought  by  the  injured  servant  against  his 
co-servant.  This  proposition  was  first  established  in  the  leading 
case  of  Priestley  v.  Fowler,^  but  is  now  firmly  established  both  in 
English  and  American  law,  where  there  is  no  countervailing 
statute.^ 

The  rule  above  stated  is  subject  to  some  important  quali- 
fications. 

Fimt,  The  two  servants  must  be  in  the  same  "  common  employ- 
ment." The  meaning  of  this  expression  is  that  they  arc  not 
engaged  in  different  employments,  but  in  the  same  general  em- 
ployment. For  example,  all  the  persons  engaged  in  the  operating 
of  a  railroad  would  be  deemed  to  be  in  the  same  general  employ- 
ment, and  this  would  include  a  carpenter  who  was  repairing  a 
station-house  with  reference  to  workmen  engaged  in  turning 
a  locomotive  at  a  turn-table.^  If  the  two  persons  are  working 
for  the  same  employer  for  one  common  object,  it  is  not  necessary 
that  they  should  be  engaged  on  the  same  piece  of  work.^  Some 
of  the  persons  who  have  been  said  to  be  co-servants  in  this  sense 
are  these :  driver  and  guard  of  a  stage-coach ;  steersman  and 
rowers  of  a  boat ;  engineman  and  switchman  ;  drawer  of  red 
hot  iron  from  a  forge  and  hammerer  ;5  guard  of  railway  train  and 
track  repairers,  etc.^ 

There  is  much  judicial  controversy  upon  the  point  whether  this 
rule  gives  way  in  case  one  of  the  servants  holds  a  superior  position 
to  the  other,  so  that  the  latter  is  bound  to  obey  the  orders  of  the 
former.  There  are  two  theories  on  this  subject.  One  may,  for 
convenience's  sake,  be  called  the  Scotch  theory.  This  holds  that 
exoneration  of  the  master  does  not  take  place  where  the  servant 
occasioning  the  injury  is  placed  in  superintendence,  control,  or 
authority  over  the  other.''     The  Enr/lish  theory  is,  tliat  there  is  no 

numerous,  and  it  is  unnecessary  to  collect  Lon^;  Island  R.  R.  Co.,  84  N.  Y.  77  ;  r'ur- 

tliem.  ran  v.  Merchants'  Manuf.  Co.,  130  Mass. 

1  3  M.  &  W.  1.  374  ;   Murphy  v.  Boston  &  Albany  K.  K. 

2  Besides  the   cases  already  cited,  see  Co.,  88  N.  Y.  146. 

Waller  v.  South  Eastern  R'way  Co.,  2  H.  ^  ilorgan  v.  Yale,  &c.    Railway  Com- 

&  C.  102  ;  Hutchinson  v.  The  York,  &c.  pany,  L.  Vt.  1  Q.  B.  149. 

R'way  Co.,  5  Exch.  343;  Searle  v.  Lindsay,  *  Charles  v.  Taylor,  L.  R.  3  C.  T.  Div. 

11  C.    B.   N.  s.   429;  Brown  v.  Maxwell,  492. 

6  Hill,  592;    Coon  v.  Syracuse  &    TJtica  ^  Bartonshill  Coal  Co.  v.  IJeid,  3  Macq. 

R.  R.  Co.,  5  N.  Y.  492  ;  Sherman  y.  R.  &  H.  L.  Gas.  282. 

S.  R.  R.  Co.,  17  Id.  153  ;  Boldt  v.  N.  Y.  «  Waller  v.  South  Eastern  Railway  Co., 

C.  R.  R.  Co.,  18  Id.  432  ;  Farwell  v.  B.  &  2  H.  &  C.  102. 

W.  R.  R.  Co.,  4  Met.  49  ;  McCosker   v.  ^  M'Aulay   v.    Brownlie,    22    Daulop, 


332  THE   LAW   OF   PERSONS. 

distinction  as  to  the  exemption  of  the  common  employer  from 
liability  to  answer  for  an  injury  to  one  of  his  workmen  by  another, 
in  consequence  of  their  being  workmen  of  diflerent  classes  or 

grades.^ 

The  American  cases  generally  are  in  accord  with  the  English 
view.  Many  of  them  have  presented  the  instance  of  a  foreman 
having  charge  of  a  gang  of  laborers,  or  superintending  the  com- 
pletion of  some  works,  but  having  no  general  control  over, the 
nien.2  If,  however,  the  person  alleged  to  be  a  co-servant,  was  in 
fact  the  representative  of  the  employer,  being  a  so-called  alter  ego, 
the  rule  gives  way,  and  the  master  is  liable  for  the  negligence  of 
one  thus  substituted  in  his  place.^  A  general  agent  may  be 
brought  under  this  rule.* 

Some  of  the  American  courts  adopt  the  Scotch  doctrine,  and 
hold  that  if  one  of  the  servants  be  superior  to  the  others,  without 
being  an  alter  ego,  the  master  will  be  liable,  (a)  This  view  does 
not  seem  to  rest  ui)on  sound  principle. 

On  the  other  hand,  the  courts  in  a  number  of  the  States,  and 
those  of  very  high  authority,  adhere  steadfastly  to  the  rule  of 
alter  ego,  as  long  as  the  fellow-servants  are  in  the  same  common 
employment.^  The  cases  on  this  subject  are  very  numerous  as 
well  as  conflicting.  This  growing  divergence  of  judicial  opinion 
is  to  some  extent  attributable  to  a  decision  of  the  Supreme  Court 
of  the  United  States,  to  the  effect  that  a  conductor  having  charge 
of  a  freight  train  on  a  railroad  is  not  a  fellow-servant  of  the  engi- 

975  ;   Somerville   v.    Gray  &  Co.,    1   Mc-  ^  Doughty  v.   Penobscot  Log  Driving 

Pherson,  768  ;  cited  in  Wilson  v.  Merry,  Co.,  76  Me.  143  ;  Cassidy  v.   Maine  Ceu- 

L.  R.  1  Sc.  App.  Cas.  338.  tral  R.  R.  Co.,  LI.  488  ;  Scott  v.  Sweeney, 

1  Wigmore  v.  Jay,  5  Exch.  354  ;  Gal-  34   Hun,   292  ;    Brazil   &  C.  Coal  Co.  v. 

lagher   v.   Piper,     16    C.    B.    N.    s.    669;  Cain,  98  Ind.  282  ;  Foley  v.  Chicago,  R.  L 

Feltham  v.  England,  L.  R.  2  Q.  B.  33.  &  P.  R.  R.  Co.,  64  la.  644  ;  Pease  v.  Chi- 

3  McDermott    v.    Boston,    133    Mass.  cago  &  N.  R.   R.  Co.,  61  Wis.   163.     The 

349  ;  Flynn  v.  Salem,  134  Id.   351  ;  Hart  mate  and  master  of  a  ship  were  declared 

V.  New  York   Dry   Dock  Co.,   48  N.  Y.  to  be  fellow-servants  in  Mathews  v.   Case, 

Super.  Ct.  460  ;    Keystone  Bridge  Co.  v.  61  Wis.  491  ;  Fraker  v.  St.  Paul  M.  &  M. 

Newberry,  96  Pa.  St.   246  ;  Chicago  &  T.  R.  R.  Co.,  32  Minn.  54  ;  Willis  y.  Oregon 

R.  R.  Co.  V.  Simmons,  11  111.  App.  147.  Ry.  &  Nav.  Co.,  11  Ore.  257;  Clifford  v. 

Murphy   v.   Smith,   19    C.    B.  x.    s.  Old  Colony   R.   R.    Co.,    141  Mass.  564  ; 

361  ;  Ross  v.  Chicago,  &c.  Ry.,  2  McCrary  Reese  v.  Biddle,  112  Pa.  St.  72;  Kirk  r. 

C.  Ct.  235;  Henry  V.  Brady,  9  Daly,  142.  Atlanta,   &c.   R.  R.   Co.,   94   N.  C.    625  ; 

*  Mitchell  V.  Robinson,  80  Ind.   281.  Conley  v.  Portland,  78  Me.  217  ;  Loughlin 

See  also  Miller  v.  Union  Pacific  R.  R.  Co.,  v.   The  State,  105  N.   Y.  159  ;  Baltimore 

17  Fed.  R.  67  ;  Gravelle  v.  Minneapolis  Elevator  Co.  v.  Neal,  65  Md.  438  ;  John- 
&  St.  Louis  R.  R.  Co.,  3  McCrary  C.  Ct.  ston  v.  Pittsburgh  &  W.  R.  R.  Co.,  114  Pa. 
352  ;  Gunter  v.  Graniteville  Manuf.  Co.,  St.  443. 

18  S.  C.  262. 


[n]   East  Tenn.,  &c.  Rv.  Co.  v.  De  Armond,  86  Tenn.  73  ;  Northern  Pac.  Ry.  Co. 
V.  Peterson,  51  Fed.  R.  182. 


MASTER   AND   SERVANT.  333 

neer  so  as  to  preclude  a  recovery  by  the  latter  against  the  company 
for  an  injury  resulting  from  the  conductor's  negligence.^  Some 
late  cases  in  other  courts,  proceeding  on  a  similar  principle,  will 
be  found  in  a  note.2(a)  An  employee  who  has  the  power  to 
hire,  direct  the  work  of,  and  discharge  servants  engaged  with 
him  in  a  common  employment,  may  properly  be  treated  as  an 
alter  ego,  so  as  to  make  the  employer  liable  for  acts  of  negligence 
causing  injury  to  such  servants. ^(6) 

A  peculiar  rule  applies  in  cases  arising  under  the  maritime  law, 
which  imposes  on  the  owners  of  a  vessel  the  duty  to  render  such 
care  and  medical  aid  to  seamen  employed  thereon  as  circum- 
stances will  admit.  The  master  acts  in  such  a  case  for  the 
owners,  and  if  he  fails  to  perform  this  duty  towards  a  mate,  the 
fact  that  the  master  and  mate  of  the  ship  are  fellow-servants  will 
not  relieve  the  owners  from  liability  to  the  mate.* 

It  still  remains  to  consider  the  case  where  the  servants  are 
under  the  same  master  but  not  under  a  common  employment.  In 
this  case,  the  master  is  liable,  if  one  through  negligence  injures 
another.  The  fundamental  basis  of  non-liability  of  the  master  is 
that  the  misconduct  of  a  fellow-servant  is  one  of  the  risks  which 
an  employee  assumes  in  fixing  the  rate  of  wages.  This  would  not 
be  applicable  if  he  was  injured  by  a  servant  not  in  the  same  com- 
mon employment,  as  no  estimate  could  be  made  by  the  servant 
injured  of  the  co-servant's  possible  negligence. 

1  Chicago,  Milwaukee,  &  S.  P.  \l.  R.  Co.,  78  Va.  745  ;  Central  R.  R.  Co.  v.  De 
Co.  V.  Ross,  112  U.  S.  377.  There  was  Bray,  71  Ga.  406  ;  East  Teiiii.  &  W.N.  C. 
strong  dissent  in  this  case,  the  judges  R.  R.  Co.  v.  Collins,  85  Tenii.  227. 
standing  five  to  four.  See  also  Northern  ^  McDermott  v.  Hannibal  &  St.  Joseph 
Pacific  R.  R.  Co.  v.  Herbert,  116  U.  S.  R.  R.  Co.,  87  Mo.  285  ;  Clowers  v.  W.  St. 
642.  L.   &  P.  R.    R.    Co.,  21   Mo.  App.   213  ; 

2  Darrigan  v.  N.  Y.  &  N.  E.  R.  R.  Co.,  McKune  v.  Cal.  So.  R.  R.  Co.,  66  Cai. 
52  Conn.  285  (case  of  a  train  dispatcher)  ;  302  ;  Patton  v.  Western  N.  C.  R.  R.  Co., 
Zeigler  v.  Danbury  &  Norwalk  R.  R.  Co.,  96  N.  C.  455,  462. 

Id.  543  ;  Moon's  Adm'r  v.  R.  &  A.  R.  R.  «  Scarff  v.  Metcalf,  107  N.  Y.  211. 

(a)  The  liability  of  the  master  to  his  547  ;    Loughlin   v.    State  of  New  York, 

servant  for  the  acts  of  other  servants  in  105  N.  Y.    159  ;    Hnssey  v.    Coger,    112 

the   same    employment   is,    by   the    later  N.  Y.  614  ;  Gabrielson  v.  Waydell,   135 

authorities,  made  to  depend  upon  the  char.  N.  Y.  1  ;  Dube  v.  Lewiston,  83  Jle.  211  ; 

acter  of  the   act   in   question  rather  than  Galveston,    &c.    Ry.    Co.    v.    Smith,    76 

upon  the  rank  of  the  employee  performing  Tex.  611  ;  Taylor  i\  The  Evansville,  &c. 

it.     If  it  is  done  pursuant  to  a  duty  owed  Ry.     Co.,    121     Ind.     124;    Lindvall    v. 

by  the  master  to  his  servant.s,  he  is  liable  Woods,  41  Minn.  212. 
for  negligence  in  its  performance  ;  while  if  (h)   Palmer  v.  Mich.  Cent.  Ry.  Co.,  93 

it  pertains  only  to  the  duty   of  an    em-  Mich.  363  ;  Nix  v.  Texas  Pacific  Ry.  Co., 

ployee,  the  master  is  free   from   liability  82  Tex.  473  ;  Baldwin  v.   St.   Louis  Ry. 

for  the  manner  in  which  it  is  performed.  Co.,  75  la.  297.      Cf  Webb  v.  Richmond 

Crispin  v.   Babbitt,  81  N.  Y.  516,  521  ;  &  Danville  Ry.  Co.,  97  N.  C.  387. 
Benzing  v.   Stein  way  a  Sons,  101  N.  Y. 


334  THE   LAW    OF    PERSONS. 

Second,  The  alleged  co-servants  must  be  employed  by  the  same 
master.  Tliis  point  is  illustrated  by  the  case  where  two  railroad 
companies  use  the  same  track,  and  a  servant  of  one  is  injured 
by  the  negligence  of  the  servant  of  the  other.  The  master  in 
such  a  case  is  liable.^ 

Third,  If  the  master  works  with  the  servant,  and  so  in  a  sense 
holds  a  double  character,  tliat  of  master  and  co-operating  work- 
man, his  position  as  master  prevails,  and  he  is  liable  for  negligence 
causing  injury. (a) 

Fourth,  If  the  rules  and  regulations  of  the  master  are  so  framed 
as  to  bring  the  co-servants  into  collision  without  their  fault,  the 
master  is  the  real  author  of  the  injury,  and  is  responsible. 

Effect  of  contributory  negligence  on  the  jjart  of  the  servant.  — 
Notwithstanding  that  a  case  of  injury  would  in  its  general  facts 
make  the  master  liable,  yet  if  the  negligence  of  the  injured  ser- 
vant contributes  to  his  injury,  he  cannot  recover.  The  leading 
instance  of  this  kind  is  the  case  of  negligence  imputed  to  the 
injured  servant  from  continuing  to  work  without  complaint  with 
a  fellow-servant  after  knowledge  of  the  latter's  incompetency.^ 
But  a  single  act  of  negligence  of  a  servant  does  not  necessarily 
charge  the  master  with  notice  of  his  incompetency  so  as  to  make 
him  liable.^  In  other  words,  it  might  be  the  proper  course  at  a 
trial  to  submit  the  question  of  negligence  as  a  matter  of  fact  to 
a  jury .4^ 

The  injured  party  must  allege  in  his  complaint  and  prove  at 
the  trial  his  ignorance  of  his  fellow-servant's  negligent  habits,^  as 
well  as  that  the  master  did  not  use  care  in  selection,  or  that  the 
servant  was  retained  after  knowledge  by  the  master  of  his  short- 
comings.^ The  general  principle  governing  the  subject  is,  that 
the  master  is  presumed  to  do  his  duty,  and  that  the  servant  must 
rebut  tliis  presumption  by  showing  fault  on  the  master's  part,  as 
well  as  that  he  was  free  from  fault."  It  is  a  rule  in  the  United 
States  courts  that  in  determining  the  question  of  contributory 
negligence  on  the  servant's  part,  regard  must  be  had  to  the  cir- 

1  Smith  V.  N.  Y.  &  Harlem  R.  R.  Co.,  5  Ir.  R.  (C.  L.)  206;  Fraziei  v.  Penn.  R.  R. 
19  N.  Y.  127  ;  Warburton  v.  G.  W.  R.  R.     Co.,  38  Pa.  St.  104. 

Co.,  L.  R.  2  Exch.  30.  5  Lake  Shore  &  M.  S.  R.  R.  Co.  v.  Stu- 

2  Hatt  V.  Nay,  144  Mass.  186.  pak,  108  Ind.  1. 

3  Baltimore  Elevator  Co.  v.  Neal,  65  6  Ind.  B.  &  AV.  R.  R.  Co.  v.  Pailey, 
Md.  438.  110  Ind.  75. 

4  Skerritt  v.  Scallan,  11  Ir.  R.  (C.  L.)  1  Cahill  v.  Hilton,  106  N.  Y.  512. 
389  ;  Hoey  v.  Dublin  &  B.  J.  R'way  Co., 

{o)  As  to  the  liability  of  the  master  for  himself,  see  Kaiser  v.  Flaccus,  138  Pa.  St. 
the  injury  of  a  servant  caused  by  the  com-  332  ;  Young  v.  Shickle,  &c.  Co.,  103  Mo. 
bined  negligence  of  a  fellow-servant  and     324  ;  Rogers  v.  Leyden,  127  Ind.  50. 


MASTER   AND   SERVANT.  335 

curastances  of  the  case  and  the  exigencies  of  his  position,  and 
that  the  question  shoukl  not  be  witlihcld  from  the  juiy,  unless 
the  evidence  so  conchisively  establishes  contributory  negligence 
that  the  court  would,  in  the  exercise  of  a  sound  discretion,  be 
compelled  to  set  aside  a  verdict  in  the  plaintiff's  favor.i 

It  only  remains  to  notice  the  case  of  one  who  places  himself  in 
thQ  position  of  a  co-servant  by  volunteering  to  aid  a  servant,  in 
the  absence  and  without  the  knowledge  of  the  master.  Such  a 
person  must  for  the  time  being  be  deemed  to  be  in  no  better  con- 
dition than  a  co-servant,  for  the  pur[)ose  of  having  a  remedy 
against  the  master.  In  fact,  he  is  in  a  worse  position,  for  as  to 
him  the  master  is  under  no  duty  whatever, —  under,  for  example, 
no  duty  of  careful  selection,  of  the  faulty  co-servant.^  A  person 
so  interfering  is  in  law  an  intruder,  though  liis  motives  may  have 
been  innocent.  Legislation  upon  this  subject  is  referred  to  in 
a  note.3  This  legislation  does  not,  however,  affect  the  principle 
of  contributory  negligence,  which  is  an  inference  from  a  legal 
rule  frequently  stated  in  the  form  of  a  maxim, —  volenti  non  fit 
injuria,  (h) 

Acts  which  the  master  is  not  hound  to  do  as  betiveen  him  and  his 
servant.  —  It  is  intended  to  group  together  under  this  head  some 
propositions  decided  by  the  courts  adverse  to  the  master's  re- 
sponsibility. If  the  master  has  performed  the  duties  imposed 
upon  him  by  law,  as  to  providing  suitable  tools,  means  of  ingress 
and  egress,  etc.,  he  is  not  liable  for  injury  occasioned  to  the  serv- 
ant by  the  happening  of  one  of  the  risks  attendant  upon  the 
employment.      The  servant  is  assumed  to  have  taken  that  into 

1  Kane  v.  Northern  Central  R.  R.  Co.,  L.  R.  14  Q.  B.  Div.  68.  (a)  The  work- 
123  U.  S.  91.  See  also  Northern  Pac.  man  may  "contract  himself  out  of  the 
R.  R.  Co.  V.  Mares,  123  Id.  710.  Act"     as     to     recovering     compensation 

^  Degg  I'.  Midland  R.  R.  Co.,  1  H.  &  N.  which    it    allows  for   injuries   sustained, 

773.  and  thus  leave  himself  in  the  same  position 

2  Reference  should  he  made  to  impor-  as  before.  Such  a  contract  is  not  held  to 
tant  recent  legislation  in  England  materi-  be  void  as  against  puhlic  policy.  Griffiths 
ally  modifying  the  former  law.  This  is  v.  Dudley,  L.  R.  9  Q.  B.  Div.  357.  This 
the  so-called  "  Employers'  Liability  Act  Act  does  not  embrace  all  sorts  of  servants, 
of  1880,"  43  &  44  Vict.  c.  42.  This  Act  but  such  as  are  enumerated.  "The  Fac- 
is  highly  favorable  to  the  workman,  and,  tory  Acts  "  are  also  to  be  noted  as  sup- 
among  other  things,  practically  does  away  plying  protection  to  the  workman  while , 
with  the  rule  making  a  foreman  a  fellow-  engaged  in  various  enumerated  kinds  of 
servant  with  those  i;nder  his  directions,  work.  3  &  4  William  IV.  c.  103  ;  7  &  8 
and  disentitling  the  latter  to  recover  for  Vict.  c.  15  ;  41  &  42  Vict.  c.  16,  and  54 
injuries  sustained  by  the  former's  negli-  &  55  Vict.  c.  75. 

gence.     Milhvard  v.   Midland   R.   R.  Co., 


(a)  Several  States  of  the  Union  have  (h)    See  Wild    v.   Waygood   [1S02,]  1 

enacted  similar  though  less  comprehensive     Q.  B.  783. 
statutes,  for  the  particulars  of  which  the 
laws  of  these  States  should  be  consulted. 


336  THE   LA.W   OF   PERSONS. 

account  in  fixing  the  rate  of  wages.  An  instance  is  the  break- 
ing away  of  a  portion  of  a  railway  engine.^ 

If  the  servant  is  sick,  and  needs  medical  treatment,  the  master  is 
not  bound  to  supply  it.  If  he  does  do  so,  and  sends  for  a  physician 
without  the  servant's  direction,  he  will  be  liable  to  the  physician, 
and  cannot  charge  the  expense  to  the  servant. 

He  is  not  required  to  certify  as  to  the  servant's  character  when 
he  leaves  him.  If  he  does  so,  and  makes  defamatory  statements 
to  one  who  has  a  right  to  know  if  they  are  true,  he  will  not  be 
responsible  if  they  are  false,  provided  that  he  acts  in  good  faith  ; 
if  he  knowingly  makes  a  false  statement,  he  will  be  liable  in 
an  action  for  defamation. 

Section  III.  Rights  of  TJiird  Persons  against  the  Master.  —  The 
object  of  this  section  is,  in  substance,  to  consider  the  duties  of  a 
master  towards  "  third  persons."  These  so-called  third  persons 
may  be  of  two  principal  classes,  one  being  persons  with  whom 
the  master  has  made  a  contract  to  do  an  act,  and  has  also  em- 
ployed a  servant  as  an  instrument  to  carry  out  the  contract ;  the 
other  class  being  mere  strangers. 

I.  Where  the  master  is  under  a  contract.  —  In  this  case  the 
master  will  be  responsible  as  a  contracting  party  to  see  that 
the  agreement  is  performed.  If  he  makes  use  of  servants  for 
this  purpose,  he  is  still  bound  to  see  that  the  contract  is  carried 
out,  and  is  liable  for  their  wilful  and  unauthorized  acts  violating 
the  contract.  An  example  is  found  in  the  case  of  a  railway, 
where  a  conductor  wilfully  stops  a  train  and  retards  the  journey 
of  the  passengers.^  The  same  principle  has  been  applied  to  acts 
of  violence  committed  by  conductors,  stage-drivers,  and  the  like, 
upon  passengers,  the  master  being  under  an  implied  contract  to 
treat  a  passenger  while  under  his  care  with  civility  and  propriety. 
The  case  accordingly  is  not  at  all  analogous  to  that  of  wilful 
injuries  inflicted  by  the  servants  of  carriers  upon  strangers.^  («) 

1  Saxton  V.  Hawksworth,  20  L.  T.  N.  s.  4  Gray,  465  ;  Mil.  &  Miss.  R.  R.  Co.  v. 
851.  See  also  Hudson  v.  Ocean  Steamship  Finney,  10  Wis.  388  ;  Bryant  v.  Rich,  106 
Co.,  110  N.  Y.  625.  Mass.  180.    This  distinction  was  lost  sight 

2  Weed  V.  Panama  R.  R.  Co.,  17  N.  Y.  of  in  Isaacs  v.  Third  Ave.  R.  R.  Co.,  47 
362  ;  Blackstock  v.  N.  Y.  &  Erie  R.  R.  N.  Y.  122  ;  but  the  error  was  rectified  in 
Co.,  20  N.  Y.  48.  Stewart  v.  Brooklyn  R.  R.  Co.,  90  N.  Y. 

8  Goddard  v.  Grand  Trunk  R'way,  57     588. 
Me.    202  ;    Moore  v.   Fitchburg  Railroad, 

(ffl)  Palmeri    v.    Manhattan  Ry.    Co.,  ful  acts  of  the  servants  of  a  sleeping-car 

133  N.  Y.  261  ;  Dwinelle  v.   N.  Y.  Cent.,  or  parlor-car  company,  when  done  in  the 

&c.  Ry.  Co.,  120  N.  Y.   117  ;    Mulligan  performance  of  the  duties  and  obligations 

V.  "N.  Y.  &  Rockaway  Beach  Ry.  Co.,  129  of  the  railroad  comy)any  under  its  contract. 

N.  Y.  506.      A  railroad  company  is  liable  Dwinelle  v.  N.  Y.  Cent.  Ry.  Co.,  siipra  ; 

to  a  passenger  for  the  negligence  or  wrong-  Thorpe  v.  N.  Y.  Cent.  Ry.  Co.,  76  N.  Y. 


MASTER    AND    SERVANT.  337 

II.  Duties  of  the  master  totuards  stranrjers.  —  (1)  It  has  alreadv 
been  stated  that  a  distinction  is  to  be  taken  between  a  servant 
and  a  contractor,  and  the  characteristics  in  each  case  have  been 
j)ointed  out.  It  still  remains  to  consider  in  more  detail  the  dif- 
.  ference  between  the  liability  of  a  master  and  that  of  one  who 
employs  a  contractor. 

According  to  the  present  law,  if  an  employer  contracts  with  a 
person  to  do  a  piece  of  work  which  it  is  lawful  to  do,  and  which 
the  employer  is  not  under  a  duty  to  perform  in  a  particular 
manner,  and  the  contractor  in  turn  employs  sub-contractors  or 
servants,  the  original  employer  is  not  liable  to  a  third  person  for 
an  injury  sustained  from  the  negligent  act  of  the  sub-conti-actor 
or  servant  of  the  contractor.  The  remedy  in  such  a  case  is  to  be 
sought  against  the  contractor  or  his  subordinates,  as  the  facts  of 
the  case  may  require. 

This  doctrine  is  inconsistent  with  some  early  decisions,  which 
are  accordingly  overruled.  The  most  noted  of  these  is  Bush  v. 
Steinman.^  In  that  case  A.,  being  the  owner  of  a  house,  con- 
tracted with  B.  to  repair  it  for  a  fixed  sum.  B.  made  several  sub- 
contracts, and  D.,  the  servant  of  one  of  the  sub-contractors, 
negligently  deposited  lime  in  the  road  in  front  of  A.'s  premises, 
whereby  the  plaintiff,  E.,  was  injured.  Tlie  court  hold  that  A.  was 
liable  as  being  substantially  the  master  of  D.,  the  wrongdoer. 
The  case  is  not  only  abandoned  in  England,  but  discarded  in  tbis 
country .2  (a) 

If,  however,  the  contractor  does  not  act  as  such,  but  places  him- 
self in  the  position  of  a  servant  for  the  time  being,  the  employer 
will  be  a  master  and  responsible.^  The  contractor  emploving 
servants  is  to  be  regarded  as  a  master,  and  liable  for  their  acts  in 
the  same  way. 

There  is  a  qualification  to  the  rule  that  an  employer  is  not 
liable  for  the  acts  of  a  contractor.  The  act  to  be  done  must  not 
be  unlawful  or  illegal.  If  it  be  of  that  nature,  tlie  contractor  and 
employer  will  be  jointly  liable  as  wrong-doers.*  {h) 

1  1  Bos.  &  P.  404.  of  N.  Y.,  8  N.  Y.  222  ;  Kelly  v.  Mayor, 

2  Steel  V.  South  Eastern  Railway  Co.,     &c.  of  N.  Y.,  11  N.  Y.  432. 

16  C.  B.  550  ;  Reedis  v.  London  &  N.  W.  3  gadler  v.  Henlock,  4  Ell.  &  B.  570  ; 

R'way  Co.,  4  E.xch.  244  ;  Hobbit  v.  Lon-  Holmes  v.  Onion,  2  C.  B.  N.  s.  790. 

don  &  N.  W.  R'way  Co.,  254  ;    Blake  v.  «  Ellis  v.  Sheffield  Gas  Co.,  2  Ell.  &  B. 

Ferris,  5  N.  Y.   48  ;    Pack  v.  Mayor,  &c.  767  ;  Clark  v.  Fry,  8  Ohio  St.  358. 

402;    Penn.  Co.  v.  Roy,  102  U.   S.  451;  R.  R.    Co.,  87  Va.   711;  Rome,  &c.  Ry. 

Williams  v.  Pullman  Car  Co.,  40  La.  Ann.  Co.  v.  Chasteen,  88  Ala.   591  ;  Powell  v. 

417.  Construction    Company,    88    Tenn.   692  ; 

(r()  Long     V.    Moon,    107    Mo.     334;  Charlock  v.  Freel,  125  N.  Y.  357. 
Hackett  v.  The  ^Vestern  Union  Tel.  Co.,  (b)  If  also  the  employer  exercise  con- 

80  Wis.  187  ;   Bibb's   Adm'r   v.  N.  &  W.  trol  over  the  workmen  who  obey  his  orders, 

22 


338  THE   LAW    OF   PKKSONS. 

The  employer  must  not  be  under  a  legal  duty  to  perform  the  act 
in  a  particular  way.    Such  a  duty  may  arise  in  a  number  of  ways. 

It  may  be  imposed  by  statute,  —  as,  for  example,  upon  a  village  or 
city,  to  properly  care  for  its  streets.  The  corporation  uuder  such 
circumstances  cannot  shift  off  its  legal  obligation  by  employing  a 
contractor  to  do  the  svork  in  its  stead. ^  It  may  be  regarded  as  a 
settled  rule  that  if  a  duty  be  imposed  by  statute  as  to  the  use  and 
enjoyment  of  property,  the  owner  cannot  escape  from  the  duty  by 
employing  a  contractor  in  his  stead.^ 

The  duty  may  be  imposed  by  a  general  rule  of  law.  An  example 
is  found  in  the  obligation  of  an  owner  of  land  not  to  cast  out,  by 
blasting  or  otherwise,  rubbish  or  stone  upon  his  neighbor's  land  to 
his  injury.  The  duty  is  summed  up  in  a  settled  legal  maxim  that 
"  every  one  must  so  use  his  own  as  not  to  injure  another's."  ^ 
There  is  a  difference  of  opinion  upon  the  point  whether  the 
owner  can  escape  responsibility  in  such  a  case  by  employing  a 
contractor.  It  has  been  held  by  a  divided  court  in  New  York  that 
he  can,  though  the  decision  was  opposed  to  the  earlier  authorities.* 

The  distinction  between  a  statutory  duty  and  a  common  law 
duty  taken  in  these  cases  appears  to  be  over  subtle  and  without 
solid  foundation  in  principle.  It  makes  an  obligation  turn  upon 
an  immaterial  point,  —  viz.,  how  it  originates,  —  rather  than  upon 
the  intrinsic  nature  of  the  duty  or  obligation  itself.  Every  legal 
duty,  no  matter  how  it  originates,  is  personal,  and  cannot  be  shifted 
off  upon  others.^ 

In  another  class  of  cases  the  duty  is  derived  from  the  character 
of  the  act  to  be  done.  It  may  have  in  it  an  element  of  danger  to 
third  persons.  Now,  if  A.  employs  B.  to  do  such  an  act,  he  must 
see  that  it  is  so  performed  as  to  cause  no  injury  to  a  third  ])erson, 
not  himself  in  fault.  But  the  injurious  act  must  be  closely  connected 
with  the  injury  itself.  If,  therefore,  the  contractor,  acting  negli- 
gently, should  injure  a  third  person  by  means  of  a  collateral  act, — 
that  is,  one  not  directly  embraced  in  the  original  employment, 

1  Storrs  V.  City  of  Utica,  17  N.  Y.  104  ;  *  IMcCafferty  v.  S.  D.  &  P.  M.  R.  E.  Co., 
Conrad  v.  Ithaca,  16  Id.  158  ;  Detroit  v.  61  N.  Y.  178,  followed  without  discussion 
Corey,  9  Mich.  165;  Requa  v.  City  of  in  Ferguson  r.  Hubbell,  97  N.  Y.  507,  510. 
Rochester,  45  IST.  Y.  129.  ^  in  Bower  v.  Peate,  L.  R.  1  Q.  P..  Div. 

2  Dorrity  v.  Rapp,  72  N.  Y.  307.  It  321,  it  is  said  that  it  can  make  no  dilfer- 
seems  impossible  to  reconcile  this  case  with  ence  in  such  a  case  whether  the  ol)ligation 
Herrington  v.  Village  of  Lansingburgh,  was  imposed  by  statute  or  existed  at  law, 
110  N.'  Y.  145.  p.  328. 

3  Hay  V.    Cohoes   Co.,  2  N.   Y.   159  ; 
Tremain  v.  Cohoes  Co.,  Id.  163. 


and  over  the  mode  of  doing  the  work,  he  416  ;  Mumby  v.  Bowden,  25  Fla.  454  ; 
will  be  responsible  for  their  negligent  acts  Railroad  Company  v,  Hanning,  15  Wall. 
Reynolds    v.    Braithwaite,    131    Pa.    St.     649. 


MASTER    AND    SERVANT.  339 

—  the  employer  would  not  be  liable.  This  view  is  adopted  iu  a 
number  of  cases  both  in  England  and  in  this  country. ^  (a) 

Mr.  Pollock,  in  his  work  on  Torts,  in  speaking  of  the  duties  im- 
posed by  law  on  the  occupiers  of  buildings,  etc.,  says  that  the  duty 
"  goes  beyond  the  common  doctrine  of  responsibility  for  servants  ; 
for  the  occupier  cannot  discharge  himself  by  employing  an  inde- 
pendent contractor,  however  careful  he  may  be  in  the  choice  of 
that  contractor,"  ^ 

The  result  is  that  in  all  cases  where  one  is  under  a  duty,  whether 
originating  in  statute  or  some  rule  of  law,  or  even  by  contract,  he 
must  see  that  the  duty  is  properly  discharged,  and  he  cannot  ab- 
solve himself  from  it  by  delegating  the  performance  of  the  duty  to 
another,  be  he  contractor  or  not.  A.  may  assign  his  rights  under 
a  contract,  but  how  can  he  assign  his  duties  and  escape  liability  ? 
It  is  plain  that  he  cannot.  Neither  can  he  delegate  the  discharge 
of  them  to  others  and  escape  liability.  A  fortiori  he  can  neither 
transfer  nor  delegate  duties  imposed  upon  him  by  a  general  rule 
of  law  or  by  statute. 

(2)  The  employment  of  the  servant  must  have  been  voluntary. 
The  question  as  to  the  liability  of  an  alleged  master  sometimes 
arises  where,  for  example,  a  local  law  requires  a  ship  owner  or 
master  to  take  a  licensed  pilot,  and  he  performs  his  duties  so 
negligently  as  to  injure  another  ship.  The  English  law  holds,  as 
this  is  a  compulsory  service,  the  owner  is  not  liable.^ 

The  Supreme  Court  of  the  United  States,  sitting  as  an  Admiralty 
Court,  has  held  the  owner  liable,  not  by  a  rule  under  the  law  of 
master  and  servant,  but  under  a  great  principle  of  general  applica- 
tion that  "  every  man  should  so  use  his  own  as  not  to  injure 
another's."  ^  The  English  court  departs  from  its  rule  in  case  of 
pilotage  through  the  Suez  Canal,  holding  that  the  pilotage  rules 
there  are  not  in  a  legal  sense  compulsory,  and  that  the  case  then 
falls  under  the  law  of  master  and  servant.^ 

(3)  In  order  to  make  a  master  liable  for  the  act  of  his  servant, 
it  must  be  embraced  within  the  scope  of  the  employment.  The 
great  inquiry  in  this  connection  is  not  what  authority  the  servant 

1  Pickard  v.  Smith,   10    C.    B.     n.   r.  2  PoUork  on  Tnrts,  p.  414. 

470,  480  ;  Bower  v.  Peate,  L.  R.  1  Q.  B.  3  The  Royal  Cliaiter,   L.   R.   2  Adm. 

Div.  321;  Tarry  v  Ashton,  Id.  314;  Fran-  362. 

cis  V.  Cockrell,  L.  R  5  Q.  B.  501,  515,  516  ;  «  The  China,  7  Wall.  53. 

Dalton  V.  Angus,  L.  R.  6  App.  Cases,  740  ;  *  The  Guy  Mannering,  L.  R.  7  P.  D. 

Hughes  V.  Percival,  L.  R    8  App.   Cases,  132. 
443 ,  Gorham  v.  Gross,  125  Mass.  232,  240. 


(a)  See   Railroad  Company  v.  Morey,     Mass.   123  ;   Woodman  v.  Met.  Ry.   Co., 
47  Ohio  St.  207  ;  Atlanta  Ry  Co.  v.  Kim-     149  Mass.  335. 
terly,  87  Ga,  161  ;  Curtis  v.  Kiley,  153 


340  THE    LAW   OF   PERSONS. 

assumes,  but  what  power  the  master  has  conferred  upon  him. 
This  is  the  meaning  of  the  expression  the  "  scope  of  the  employ- 
ment." This  authority  may  be  conferred  by  express  words,  or 
derived  by  implication  from  words  or  acts.  The  servant  will  have 
such  incidental  powers  as  are  usual  and  reasonable  to  carry  into 
effect  the  substantive  power  granted.  Thus,  if  the  rules  of  an 
employer  require  the  servant  to  remove  from  his  premises  one  who 
is  intoxicated,  the  servant  has  the  incidental  power  to  determine 
whether  a  person  supposed  to  come  under  the  rule  is  in  fact 
intoxicated.  If  he  commits  an  error  of  judgment  in  deciding  the 
point,  the  master  will  be  responsible  to  a  person  thereby  injured. 
It  would  be  quite  different  if  he  knew  he  was  sober,  for  in  that 
case  the  servant  would  be  plainly  acting  beyond  the  scope  of  his 
employment. 

There  was  at  one  time  an  attempt  made  by  the  courts  to  estab- 
lish a  distinction  between  wilful  and  negligent  acts.  This  distinc- 
tion involved  a  fallacy,  and  has  been  abandoned.  The  prevailing 
view  now  is  that  it  is  quite  immaterial  whether  the  act  be  negli- 
gent or  wilful,  the  true  test  of  liability  in  all  cases  being  "the 
scope  of  the  employment."  The  acts  done  will  be  in  some  instances 
of  such  a  nature  that  they  will  be  evidence  of  acting  within  the 
scope  of  employment  to  be  submitted  as  a  question  of  fact  to  a  jury. 

The  instances  to  which  these  rules  have  been  applied  are  very 
numerous,  and  some  of  them  may  be  cited  as  illustrations.  It 
has  been  decided  that  a  master  is  civilly  responsible  for  the  fraud 
of  a  servant  acting  in  the  course  of  his  employment,^  even  though 
the  act  is  of  so  gross  a  nature  as  to  be  a  felonious  crime.^  He 
is  also  liable  for  such  torts  as  false  imprisonment  ^  (a)  or  mali- 
cious prosecution  (even  though  the  employer  be  a  corporation),* 
or  an  assault  and  battery ,s  or  arrest  and  taking  into  custody  on  a 
charge  turning  out  to  be  unfounded  ;  ^  also  for  the  unlawful  con- 
version of  property.'  Likewise  he  is  responsible  for  the  negli- 
gence of  his  servants.  This  embraces  the  most  common  class  of 
cases,  and  very  frequently  occurs  in  the  use  of  machinery  or  the 

1  Coleman  v.  Riches,  16  C.  B.  104.  ^  Walker  v.  Sowih  Eastern  R.  R.    Co., 

2  Osborn  v.  Gillett,  L.  R.  8  Exch.  88.  L.  R.  5  C.  P.  640. 

3  Goff  V.  Great  Northern  R'way  Co.,  3  ^  Moore  v.  Metropolitan  R'y  Co.,  L.  R. 
El.  &  El.  672.  8    Q.    B.    36  ;    Eastern    Co.    R'y    Co.    v. 

4  Edwards  v.  Midland  R'way  Co.,  L.  R.  Broom,  6  Exch.  314. 

6  Q.  B.  D.  287.  "^  Giles  r.  Taff  Vale  R'y  Co.,  2  E.  & 

B.  822. 


(a)  If  the  act  of  the  servant  is  not  in  not  liable.  Mulligan  v.  N.  Y.  &  Rock- 
furtherance  of  his  master's  interests,  but  away  Beach  Ry.  Co.,  129  N.  Y.  506  ; 
for  the  supposed  benefit  of  the  community  Abrahams  i;.  Deakin  [1891],  1  Q.  B. 
Ce.  g.,  procuring  an  arrest),  the  master  is  516. 


MASTER   AND    SERVANT.  341 

driving  and  management  of  carriages  and  other  vehicles,  etc.  In 
all  such  cases,  the  leading  inquiry  will  be  whether  the  act  was 
done  within  the  scope  of  the  servant's  employment.^ 

A  few  illustrations  will  suffice.  If  the  servant  of  a  coal  mer- 
chant, in  delivering  coal,  should  take  up  a  plate  on  the  sidewalk 
in  a  highway  into  which  to  shovel  the  coal,  without  warning  a 
passer-by,  and  the  latter,  while  exercising  due  care,  should  fall 
in  and  be  injured,  the  master  would  be  liable,  as  the  act  was  done 
within  the  scope  of  the  servant's  employment,  though  done  negli- 
gently .^  So  the  act  of  a  driver  of  an  omnibus  in  striking  a  pas- 
senger with  his  whip  is  presumptively  an  act  of  negligence  for 
which  the  master  is  responsible.^  So  the  employment  of  a  tipsy 
man,  who  commits  an  act  of  negligence,  is  negligence  by  the 
master,  for  which  he  is  responsible.*  Under  this  i)rinciple  the 
master  might  be  responsible  for  an  illegal  act,  done  apparently 
within  the  scope  of  the  servant's  authority.^ 

If,  however,  the  act  done  be  without  the  scope  of  the  em- 
ployment, the  master  is  not  liable.  The  action  in  that  case 
will  only  lie  against  the  servant.  Some  illustrations  are 
subjoined. 

A  master  having  a  private  lavatory  directed  his  clerks  not  to 
use  it.  In  his  absence,  one  of  them  violated  this  direction,  and 
left  the  water  flowing  through  the  faucet  so  that  an  adjoining 
owner  was  injured.  The  master  was  not  liable.^  (a)  Again,  a 
servant  driving  a  carriage  along  a  highway,  wilfully  drove  against 
another  carriage.  The  master  was  not  liable.'  Where  also  nn 
injury  was  caused  to  a  third  person  by  a  servant  using  due  care, 
—  as,  for  example,  where  horses  under  his  charge  ran  away  with- 
out his  fault,  —  the  master  was  not  liable.^ 

Reference  should  now  be  made  to  a  class  of  cases  where  a  ser- 
vant, though  in  the  general  employment  of  a  master,  leaves  the 
service  temporarily  to  subserve  some  purpose  of  his  own  ;  or,  it 
may  be,  for  the  time  being  is  relieved  from  actual  service  by  the 
master.  In  cases  such  as  these,  the  acts  of  the  servant  cannot  be 
said  to  be  done  within  the  scope  of  his  employment.    Although,  in 

1  Moebus  V.  Herrmann,  108  N.  Y.  5  Att'y-Gen'l  v.  Siddon,  1  C.  &  J. 
349.                                                                        220. 

2  Whiteley  u.  Pepper,  L.  R.  2  Q.  B.  6  Stevens  v.  Woodward,  L.  R.  6  Q.  B. 
D.  276.                                                               D.  318. 

3  Ward   V.   General   Omnibus   Co.,  42  "  M'Mamis  v.  CriH<ett,  1  Ea.'^t,  106. 

L.  J.  N.  S.  (C.  P.)  265.  8   Holmes  v.    Matlier,    L.   R.   10   Exch, 

*  Wanstall  v.  Pooley,  6  CI.  &  F.  910  ?i.     261  ;  Crofts  v.  Waterliouse,  3  Bing.  319. 


(a)  The  master  would  be  liable  if  the     the  course  of  their  employment.     Ruddi- 
lavatory  were  for  the  use  of  the  clerks  in     man  v.  Smith,  60  L.  T.  N.  s.  708. 


342  THE    LAW    OF    PERSONS. 

one  sense,  he  may  be  in  his  master's  service,  the  act  in  question 
is  not  performed  in  his  service,  but  is  his  own  act  as  truly  as  if 
he  were  not  a  servant  at  all.  Accordingly,  a  master  is  not  liable, 
even  though  the  servant  was  without  authority  making  use  of  liis 
master's  property,  —  as,  for  example,  driving  his  vehicles.  Thus, 
vvhere  a  wine  merchant  sent  his  servant  to  deliver  wine  and 
bring  back  empty  bottles,  and  on  his  return  lie  drove  off  in  a  dif- 
ferent direction  on  a  journey  of  his  own,  the  master  was  adjudged 
not  to  be  liable  for  his  acts.^ 

If  the  facts  of  the  case  show  that  the  relation  between  two 
parties  is  rather  that  of  bailor  and  bailee  than  of  master  and 
servant,  there  will  be  no  liability  for  negligence  on  the  i)art  of  the 
proprietor.  Accordingly,  if  one  owns  a  cab  which  he  lets  to  a 
driver  for  a  weekly  payment,  the  horse,  harness,  and  whip  being 
provided  by  the  driver,  the  ow^ner  of  the  cab  having  nothing  to  do 
with  the  business  except  to  receive  the  weekly  payment,  he  will 
not  be  the  master  of  the  driver.^  It  might  be  a  case  of  master 
and  servant  if  the  owner  of  the  cab  had  supplied  the  horse  as 
well.^ 

(4)  The  master  must  owe  a  duty  to  the  person  injured  by  the 
servant,  in  order  that  such  person  may  have  an  action  against  the 
master  on  account  of  the  servant's  negligence.  This  point  is 
well  illustrated  by  a  case  where  a  person  got  into  a  cart  driven 
by  a  servant,  but  without  the  permission  of  the  owner,  and  was 
driven  so  carelessly  that  he  was  thrown  out  and  injured.  The 
master  was  held  not  to  be  liable.*  The  same  conclusion  was 
reached  where  one,  by  the  consent  of  a  conductor  of  a  freight 
train  on  a  railway,  rode  on  a  car  without  payment  of  fares,  pas- 
sengers being  forbidden  by  the  regulations  of  the  company  from 
riding  on  such  a  train.^ 

It  is  a  settled  principle  of  the  common  law  of  England  that  if 
trustees  are  appointed  by  statute  to  do  certain  acts  of  a  public 
nature,  —  e.^9'.,to  lay  out  and  repair  highways,  —  and  they  employ 
servants,  the  trustees  are  not  responsible,  nor  are  the  funds  which 
they  administer  chargeable,  for  injuries  caused  by  the  negligence 
of  the  servants.     The  great  rule  of  the  law  of  master  and  ser- 

1  Storey  v.  Ashton,  L.  R.  4  Q.  B.  476  ;  the  owner  was  held  liable  as  a  master  for 
Rayner  v.  Mitchell,  L.  R.  2  0.  P.  D.  the  driver's  negligence.  Some  remarks 
857  ;  Mitchell  v.  Crassweller,  13  C.  B.  therein  as  to  the  effect  of  certain  Acts 
237.  Sleath  v.  Wilson,  9  C.  &  P.  607,  to  of  Parliament  on  this  question  have  been 
the  contrary,  is  not  followed.  latterly  disapproved  and  need  not  be  stated. 

2  King  V.  Spurr,  L.  R.  8  Q.  B.  D.  104.  <   Ly^o  v.  Newbold,  9  Exch.  302. 

3  This  was  so  ruled  in  Powles  r.  Hider,  5  Raton  r.  0.  L.  &  W.  R.  R.  Co.,  57 
6  E.  &  R.  207,  and  Venables  v.  Smith,  N.  Y.  382  ;  Morris  v.  Brown,  111  N.  Y, 
L.  R.   2  Q.  B.   D.  279.      In  these  cases  318,  330. 


MASTER    AND    SERVANT.  343 

vant  —  respondeat  superior  —  is  not  apj)licable.i  The  trustees 
are  only  liable  for  personal  negligence  or  omission  of  ^\\i\?{a) 

The  knowledge  of  the  servant  may  in  certain  cases  be  imputed 
to  the  master  so  as  to  make  him  liable  for  negligence,  even 
though  there  were  no  actual  neglect  on  his  part.  There  are, 
for  example,  frequently  cases  in  law  where  it  is  essential  to  an 
action  for  negligence  to  prove  that  knowledge  of  a  certain  state 
of  facts  existed,  and  that,  after  this  knowledge,  due  care  and 
caution  was  not  exercised.  To  make  out  this  knowledge,  it  may 
be  sought  to  show  that  the  servant  had  it,  and  that  he  was  under 
the  circumstances  so  identified  with  the  master  that  his  knowl- 
edge was  legally  that  of  the  master.  An  instance  is  an  action 
against  the  master  for  keeping  a  vicious  dog,  whereby  the  plain- 
tiff was  injured.  If  it  be  proved  that  the  servant  having  charge  of 
the  dog  had  knowledge  of  its  vicious  disposition,  the  master  will 
be  held  to  have  the  knowledge,  and  therefore  to  be  liable.^  The 
servant  must,  however,  have  the  animal  in  charge.  It  will  not  be 
sufficient  to  bring  home  the  knowledge  of  vicious  propensities  to 
other  servants,*  unless  to  one  who  had  such  general  management 
or  control  as  to  include  the  charge  of  the  animal. 

Sectfon  IV.  Riglits  of  the  Master  aga'mst  Third  Persons.  — 
These  may  be  summed  up  as  a  right  to  be  indemnified  for  loss 
of  service  occasioned  by  their  wrongful  acts.  The  leading  acts  of 
this  kind  are  torts  committed  upon  the  servant,  such  as  assault 
and  battery  and  false  imprisonment,  also  enticement  from  service, 
and  seduction  of  a  female  servant. 

(1)  Torts  committed  against  the  servant.  There  may  be  two 
rights  invaded  in  such  a  case  :  one,  that  of  the  servant  himself, 
who  may  sue  for  the  personal  wrong ;  the  other,  that  of  the 
master  for  the  loss  of  service  sustained  by  him.  Thus,  if  the 
servant  were  wrongfully  imprisoned,  be  it  but  for  an  hour,  the  mas- 

i  Harris  v.  Baker,  4  M.  &S.  27;  Hum-  ^  Baldwin  v.   Casella,   L.   R.   7  Exch. 

phreys  v.  Mears,  1  M.  &  R.   187  ;  Hall  v.  325. 

Smith,  2  Bing.  156;  British  Cast  Plate  *  Stiles  r.  Cardiff  Steam  Nav.  Co.,  33 
MTrs  V.  Meredith,  4  Term  R.  794  ;  Dun-  L.  J.  N.  s.  (Q.  B.)  310.  But  see  Apple- 
can  V.  Findlater,  6  CI.  &  F.  894.  bee  v.  Percy,  L.  K.  9  C.  P.  647,  for  a  more 

2  Hall  V.   Smith,    supra;    Hannon    v.  relaxed  rule. 
Agnew,  96  N.  Y.  439  ;  Walsh  v.  Trustees 
of  iSr.  Y.  &  B.  Bridge,  Id.  427,  439. 


(a)  A  public  charity  has  been  held  not  Tassell    v.   Manhattan,  etc.   Hospital,    39 

subject  to  the  law  of  respondeat  superior  N.  Y.  St.  Rep.  781  ;   Harris  /;.  Woman's 

where  due  care  is  exercised  in  the  selection  Hospital,    27   Abb.    N.    C.    37.      Contra, 

of  its  servants.     McDonald  v.  Mass.  Gen-  Glnvin  v.  Rhode  Island  Hospital,  12  R.  I. 

eral  Hospital,  120   Mass.   432;  Fire  Ins.  411. 
Patrol  V.    Boyd,   120  Pa.  St.   624;   Van 


344  THE    LAW    OF   PERSONS. 

ter  would  have  a  cause  of  action. ^     No  action  will  lie  for  injuries 
causing-  the  servant's  immediate  death.^ 

If  the  servant  were  injured  by  a  culpable  failure  on  the  part  of 
a  carrier  to  carry  him  safely,  the  master  would  in  general  have 
no  cause  of  action,  because  he  is  not  a  party  to  the  contract  of 
transportation.^  If,  however,  the  injury  had  been  occasioned  by 
the  cars  of  another  company  negligently  colliding  with  those  on 
which  the  servant  was  travelling,  the  cause  of  action  would  not 
be  on  contract,  and  the  master  could  sue.* 

(2)  Seduction  of  a  female  servant.  This  subject  has  already 
been  considered  in  its  application  as  between  father  and  daughter. 
Only  a  few  words  are  necessary  in  reference  to  an  action  by  a 
master,  not  a  father  and  not  standing  in  loco  parentis.  A  master 
may  maintain  this  action  for  loss  of  service,  though  not  related  by 
blood.^  The  measure  of  damages  in  this  class  of  cases  will  in 
general  be  confined  to  the  loss  actually  sustained,  though  it  has 
been  decided  in  the  case  of  an  adopted  daughter  who  was  also  a 
servant  that  damages  beyond  the  mere  loss  of  service  might  bo 
awarded.^ 

(3)  Enticement  of  a  servant.  A  master  has  an  action 
against  one  who,  knowing  of  the  relation  between  him  and  his 
servant,  entices  the  latter  to  leave  him.  If  the  enticer  did  not 
know  the  relation  at  the  time,  he  will  be  liable  if  lie  continue  to 
employ  the  servant  after  knowledge.'  (a)  In  such  cases  the  con- 
tract between  master  and  servant  must  be  a  valid  one,^  and  may 
be  either  express  or  implied.^ 

The  cause  of  action  for  enticement  consists  in  wrongfully  and 
maliciously  breaking  off  the  relation  hettveen  the  master  and  the 
serva7it,  to  the  injury  of  the  former.  It  has  been  supposed  by 
some  jurists  that  the  action  was  derived  from  the  provisions  of  a 
statute  passed  in  the  reign  of  Edward  111.,^°  called  the  "  Statute  of 
Laborers,"  and  that  it  must  be  confined  to  servants  of  an  inferior 
grade,  referred  to  in  that  statute.^^  It  is  now  settled  in  the  English 
courts  that  it  will  include  persons  in  general  who  have  entered 
into  a  contract  to  render  exclusive  personal  service,  even  of  a  high 
grade,  such  as  that  required  of  a  singer  of  operatic  music.     The 

1  Woodward  v.  Washburn,  3  Den.  369.  •   Blake  v.  Lanyon,  6  Term  K.  221. 

2  Osborn  v.  Oillett,  L.  R.  8  Excli.  88.  8  Sykes  v.  Dixon,  9  A.  &  E.  G93. 

8  Alton  V.    Midland   Railway  Co.,   19  ^  Evans  v.  Walton.  L.  R.  2  C.  P.  615. 

C.  B.  N.  s.  213.  1''  25  Edw.  III.  Stat.  I. 

*  Berringer  v.  Great  Eastern  Railway  ^^  See  the  learned  opinion  of  Cole- 
Co.,  L.  R.  4  C.  P.  D.  163.  RioGK,  J.,  in   Lumley  v.  Gye,  2  Eil.  &  B. 

5  Fores  v.  Wilson,  Peake,  55.  216,  at  pp.  254-269. 

8  Irwin  V.  Dearman,  11  East,  23. 


(a)  De  Francesco  v.  Banmin,  63  L.  T.  N.  s.  514. 


MASTER    AND    SERVANT.  345 

theory  of  the  action  is,  that  persuading  a  person  to  break  off  a 
valid  contract  is  actionable,  even  tliough  there  is  a  remedy  against 
the  contracting  party  himself.  Another  form  of  statement  of  a 
more  general  nature  is,  that  whenever  a  man  does  an  act  which  in 
law  and  fact  is  a  wrongful  act,  and  such  an  act  may,  as  a  natural 
and  probable  consequence  of  it,  produce  injury  to  another,  and 
which  in  the  particular  case  does  produce  such  an  injury,  an  action 
will  lie.i  This  principle  is  none  the  less  applicable  because  the 
wrongful  act  has  as  a  natural  consequence  led  to  the  wrongful  act 
of  another,  such  as  a  breach  of  duty  or  contract.  It  will  be  im- 
material that  a  person  induced  to  break  a  contract,  etc.,  is  himself 
a  free  agent,  and  need  not  have  listened  to  the  enticement,  and 
that  he  is  himself  liable.  The  ground  of  action  against  the  enticer 
is  that  his  own  act  is  wrongful,  and  has  been  followed  as  a  conse- 
quence by  the  wrongful  breach  of  contract  or  of  duty  on  the  part 
of  the  person  enticed.  This  principle  has  from  time  immemorial 
been  applied  to  one  who  is  successfully  enticed  to  commit  a  breach 
of  duty  involving  loss  of  service,  such  as  harboring  or  seducing  a 
wife,  or  seducing  a  daughter  or  servant.  It  is  but  extending  the 
principle  to  an  analogous  case  when  applied  to  a  breach  of  con- 
tract.2  There  are  cases  which  confine  the  remedy,  where  a  contract 
is  broken  by  the  wrongful  act  of  another,  to  an  action  against  the 
person  contracting.  These  cases  must  be  deemed  to  be  over- 
ruled.-^ Both  servant  and  enticer  may  be  sued  together  in  a 
single  action.* 

Section  V.  The  Relation  of  the  Servant  to  Tliird  Persoyis.  —  I.  His 
rights.  —  A  servant  has  no  cause  of  action  against  one  who  injures 
his  master,  resembling  the  right  of  a  master  to  sue  for  loss  of 
service.  No  decisions  have  been  had  upon  the  point  whether  he 
could  sue  a  third  person  who  wrongfully  induced  the  master  to 
discharge  him.  The  principles  already  stated  in  the  case  where 
the  master  sues  an  enticer  for  the  loss  of  service  of  his  servant, 
would  seem  to  be  broad  enough  to  cover  this  case.^  The  servant 
may  defend  the  master  when  unwarrantably  attacked,  and  may 

1  Ashby  t).  White,  Ld.  Raymond,  938;  ^  U\m\py   v.    Gyp,    2  EU.   &  B.    21G  ; 

1  Smith's  Leading  Cases,  105.     This  was  Bowen    v.   Hall,    L.   R.    6    Q.   B.  D.  333 

an  action  by  one  who  offered  to  vote  at  an  (Court  of  Appeal).  In  this  last  case  the  rule 

election    for     members     of     Parliament,  was  applied  to  one  who  as^reed  to  make 

against    the    inspector,    who   refused   his  brick  for  another  exclusively  for  five  years, 

vote.     He  was   successful.     The  decision  ^  Such  a  case  is  Vicars  v.  Wilcocks,  8 

met  with  great  opposition,  and  aroused  so  East,  1.     That  case  is  overruled,  so  far  as 

much  feeling  that  some  parliamentary  de-  it  conflicts  with  the  princiiile  stated  in  the 

bates  upon  it  were  published  in  a  separate  text,  in  L.  R.  6  Q.  B.  D.  338,  339. 

volume   (a.  d.  1705),  with  hostile  resolu-  ■*  Bowen  v.  Hall,  supra. 

tions    by   the    House.     The    case  is  now  ^  See  the  cases  cited  under  Section  IV., 

accepted  law.  siqira. 


346  THE    LAW   OF    PERSONS. 

justify  an  assault  and  battery  committed  by  him  so  far  as  may  be 
necessary  for  that  purpose. 

11.  His  liabiliti/.  —  (1)  Tn  cases  where  the  servant  has  dune 
a  wrongful  act,  whether  wilful  or  negligent,  in  the  course  of  his 
employment  or  otherwise,  he  is  liable  to  the  injured  party  for  the 
loss  sustained,  as  being  the  principal  author  of  the  wrong.  If  his 
wrongful  act  be  such  as  to  make  the  master  liable,  the  injured 
party  may  sue  either  the  mastei-  or  servant,  or  may  sue  both  in 
a  single  action,  (a)  So,  if  a  servant,  by  his  negligence,  injure  a 
fellow-servant  in  such  a  way  that  no  action  can  be  brought  against 
the  master,  the  one  servant  may,  nevertheless,  be  sued  by  the 
other. i(i)  The  struggle  usually  is  to  maintain  an  action  against 
the  master,  if  possible,  on  account  of  the  greater  probability  in 
that  case  that  a  judgment  for  damages  will  be  collected. 

(2)  A  servant  will  not  be  excused  for  the  commission  of  a 
wrongful  or  illegal  act  on  the  ground  that  it  was  directed  by  the 
master.  If  the  act  be  a  fraud,  he  will  be  liable  in  damages,  though 
his  participation  in  the  act  were  unknown  to  the  party  injured .^ 
The  same  rule  is  applied  where  he  converts  the  property  of  an- 
other to  the  master's  use  and  benefit.^  So  if  he  aid  his  master  in 
the  commission  of  an  act  prohibited  under  a  statutory  penalty, 
though  the  latter  may  be  charged  as  principal,  the  servant  may 
be  convicted  of  aiding  and  abetting  him.* 

Acts  of  service  done  abroad,  brought  in  question  here.  —  This 
subject  is  affected  by  the  law  of  nations.  Where  a  citizen  of  this 
country  is  prohibited  by  law  from  making  a  contract  to  serve  a 
foreign  state,  and  notwithstanding  this  goes  abroad  and  enters 
into  the  service  of  the  foreign  state,  and  there  does  an  act  as 
servant  which  is  perfectly  lawful  in  the  state  where  it  is  per- 
formed, he  cannot  be  made  liable  on  his  return  to  this  country  to 
any  person  claiming  to  be  injured  by  his  act,  on  the  ground  that 
his  entering  into  the  foreign  service  was  unlawful,  and  that  there- 
fore he  was  such  a  wrongdoer  as  to  be  responsible  in  damages.^ 

1  Osborne  v.  Morgan,  130  Mass.  102  ;  3  Stephens  v.  El  wall,  4  M.  &  S.  259  : 
overruling  Albro  v.  Jaquith,  4    Gray,  99.     Cranch  v.  White,  1  Biiig.  N.  C.  414. 

See  also  Swainson  v.    N.  E.  Railway  Co.,  *  Wilson  v.  Stewart,  3  B.  &  S.  913. 

L.  R.  3  Exch.  D.  341,  343  ;  Hinds  v.  Har-  ^  Dol)ree  v.  Napier,  2  Bing.  N.  C.  781. 

bon,  58  Ind.   121;   Griffiths  v.   Wolfram,  The  defendant,  an  English  subject,  entered 

22  Minn.  185.  into  the  service  of  the  Queen  of  Portugal, 

2  CuUeniJ.  Thomson's  Trustees,  4  Macq.  contrary  to  the  "Foreign  Enlistment  Act," 
H.  L.  Gas.  424  at  p.  441.  and,   as   her   servant,    did   the   act   com- 
plained of. 


(n)  For  a  distinction,  as  to  a  servant's     feasance,  see  ]\Iurray  v.  Usher,   117  N.  Y. 
liability,  between    misfeasance   and   non-     542. 

(b)  Hare  v.  Mclntire,  82  Me.  240. 


ii\z:l:i  axd  se;;vant.  347 

Gratuitous  service.  —  It  is  a  general  rule  of  law,  that  a  person 
rendering  service  with  the  knowledge  or  consent  of  an  employer 
is  entitled  to  compensation.  If  the  rate  is  not  stipulated,  a  rea- 
sonable compensation  will  be  implied.  This,  as  a  o-eneral  rule, 
admits  of  a  number  of  important  exceptions. 

A  person  rendering  service  may  stipulate  that  payment  shall 
depend  on  a  contingency.  If  the  contingent  event  does  not  hap- 
pen, nothing  can  be  collected.  An  example  is  the  case  where 
several  persons  compete  as  architects  for  employment,  and  present 
plans,  each  agreeing  that  no  payment  is  to  be  made  to  him  unless 
his  plan  is  adopted. 

The  nature  of  the  work  done  may  be  of  such  a  kind  that  com- 
pensation is  not  usually  expected,  such  as  the  friendly  act  of  a 
neighbor  in  saving  property  endangered  by  fire  or  other  risk. 
Still,  this  would  be  but  a  presumption,  and  it  might  be  shown  that 
when  the  service  was  entered  upon,  compensation  was  mutually 
expected  to  be  paid  and  received,  in  which  case  it  could  be 
enforced. 

The  person  rendering  the  service  may  be  under  a  le>;/al  duty  to 
furnish  it,  such  as  that  of  a  fireman  employed  by  a  city  to  save 
property  or  lives  endangered  by  fire.  In  such  a  case  an  exju-ess 
promise  to  pay  for  the  services,  though  made  in  advance  and  as 
an  inducement  to  undertake  the  service,  would  be  inoperative  and 
void,  as  being  without  consideration.^ 

A  relation  may  exist  between  the  parties  which  usually  pre- 
cludes compensation,  such  as  tliat  of  a  child  living  in  a  father's 
family  receiving  board,  clothing,  etc.,  and  at  the  same  time  ren- 
dering acts  of  service.  This  relation  may  exist  after  majority, 
but  is  more  usual  in  the  case  of  a  daughter  than  a  son ;  and  it 
will  more  readily  be  inferred  in  the  case  of  the  former  than  the 
latter  that  no  compensation  is  to  be  paid.  This  is  a  matter  of 
presumption,  and  the  presumption  may  be  rebutted  by  evidence 
that  compensation  was  expected  to  be  received  and  paid.  The 
presumption  of  gratuitous  service  is  not  confined  to  children, 
but  will  be  extended  to  cases  of  other  persons  received  into  a 
family  in  the  same  general  way,  such  as  nephews,  nieces,  adopted 
children,  step-children,  parents,  etc.^     Some  courts  hold  that  the 

1  Day  V.   Putnam  Ins.  Co.,   16  Minn.  Adams'  Adm.,  23  Ind.  50;  :\Iillor  i-.  :Mil- 

408;  Russell  v.  Stewart,  44  Vt.  170.  ler,  16  111.  296  ;  Munger  v.   Munger,    33 

•^  The  general  rule  is  sustained  in  Up-  N.  H.  .'iSl  ;  Putnam  v.  Town,  34  Vt.  429  ; 

dike  V.  Titus,  13  IST.  J.  Eq.  151  ;  State  v.  Perry  v.  Perry,  2  Duvall  (Ky.),  312  ;  Con- 

Connoway,   2  Houst.    (Del.)  206;   Hart-  ger  v.  Van  Aernum,  43  Barb.  602;  Leidig 

man's  Appeal,  3  Grant's  Cases  (Pa.),  271.  r.  Coover's  Ex'r,  47  Pa.  St.  534  ;  Cooper  ». 

Cases  where  a  child  has  continued,  after  Cooper,  12   111.   App.   478.      The  case  of 

majority,  lo  live  with  a  parent :  Adams  i;.  granddaughter  and  grandfather :  Butler  v. 


348 


THE   LAW    OF   PERSONS, 


presumption  against  compensation  can  only  be  rebutted  by  proof 
of  an  express  agreement,  while  others  maintain  that  an  inference 
in  favor  of  compensation  can  be  di-awn  from  circumstances  and 
from  the  fact  that  compensation  is  expected  by  each  party  to  be 
paid.  Reference  is  made  to  authorities  in  the  note.  It  should  be 
added  that,  according  to  some  authorities,  a  minor  who  resides 
w^ithout  paying  board  in  a  family  to  which  he  is  not  related 
cannot  recover  for  services  without  proof  of  an  express  promise 
to  pay.i 

There  is  a  class  of  cases  where  it  appears  that  parties  holding 
the  apparent  relation  of  master  and  servant,  were  mutually  mis- 
taken as  to  the  existence  of  tlie  relation,  the  supposed  servant 
being  falsely  assumed  to  be  under  a  duty  to  render  service  witli- 
out  compensation.  In  such  a  case,  should  the  error  be  discovered, 
an  action  would  not  lie  for  past  services.  Illustrations  in  the  law 
books  are  the  falsely  assumed  relation  of  master  and  slave,^  or  of 
master  and  apprentice,^  or  of  husband  and  wife.*  If,  however, 
the  person  who  had  the  assumed  right  to  unremunerated  service 


Slam,  50  Pa.  St.  456  ;  Davis  v.  Goodenow, 
27  Vt.  715.  But  see  Hauser  v.  Sain,  74 
N.  C.  552.  That  of  son-in-law:  Lovet 
V.  Price,  Wright  (Ohio),  89  ;  Sprague  v. 
Waldo,  38  Vt.  139.  But  see  Amey's  Ap- 
peal, 49  Pa.  St.  126  ;  Schoch  v.  Garrett, 
69  Pa.  St.  144.  That  of  brother  and 
brother:  Bovven  v.  Bowen,  2  Bradf.  336. 
That  of  stepfather  and  stepchild  :  Gerdes 
V.  Weiser,  54  la.  591  ;  Smith  v.  PiOgers, 
24  Kan.  140  ;  Lantz  v.  Frey,  14  Pa.  St. 
201  ;  s.  C.  19  Id.  366.  There  is  no  dis- 
tinction between  adopted  and  other  chil- 
dren. Lunay  v.  Vantyne,  40  Vt.  501. 
The  case  oi  first  cousins  :  Neal  v.  Gilmore, 
79  Pa.  St.  421.  Tha.t  of  mistress  daiining 
compensation  for  services  from  her  lover : 
Walraven  v.  Jones,  1  Houst.  (Del.)  355; 
Swires  v.  Parsons,  5  AVatts  &  S.  357. 

That  the  presumption  agaiii.st  compen- 
sation may  be  rebutted  by  evidence  that 
both  parties  expected  that  it  would  be 
made,  see  Partlow  v.  Cooke,  2  R.  I.  451  ; 
Guenther  v.  Birkicht,  22  Mo.  439  ;  Green 
V.  Pioberts,  47  Barb.  521  ;  Friermuth  v. 
Friermuth,  46  Cal.  42.  Some  courts  re- 
quire very  clear  and  exact  proof.  Less 
strict  proof  seems  to  be  required  in  New 
York.  Van  Schoyck  v.  Backus,  9  Hun, 
68  ;  Markey  v.  Brewster,  10  Hun,  16  ; 
Moore  v.  Moore,  3  Abb.  App.  Dec.  303. 
See  also  Briggs  v.    Briggs,    46  Vt.  571  ; 


Smith  v.  Denman,  48  lud.  65.  It  is  said 
that  the  claim  of  a  sou  for  services  ren- 
dered by  him  after  he  attains  majority  is 
not  regarded  with  favor  by  the  Pennsyl- 
vania court.  Walker's  Estate,  3  Rawle, 
243.  There  should  be  clear  and  unequiv- 
ocal proof  that  the  relation  was  not  that 
of  parent  and  child  but  of  master  and 
servant.  Candor's  Appeal,  5  Watts  &  S. 
513  ;  Steel  v.  Steel,  12  Pa.  St.  64. 
Pellage  v.  Pellage,  32  Wis.  136,  requires 
an  ex[ircss  agieement.  See  also  Wells  v. 
Perkins,  43  Id.  160.  Neel's  Adm.  v. 
Neel,  59  Pa.  St.  347,  applies  the  same 
rule  to  all  classes  of  relatives,  though  the 
relationship  be  even  more  remote  than 
that  of  uncle  and  nephew.  See  also 
Scully  V.  Scully,  28  la.  548  ;  Harris  v. 
Currier,  44  Vt.  468  ;  Shirley  v.  Bennett, 
6  Lans.  512.  The  presumption  is  not  so 
strong  against  compensation  in  the  case  of 
remote  relatives.  Thornton  v.  Grange,  66 
Barb.  507.  The  presumption  does  not 
apply  as  to  cousins  related  by  affinity. 
Gallagher  v.  Vought,  8  Hun,  87. 

1  Windland  V.  Deeds,  44  la.  98  ;  Smith 
V.  Johnson,  45  Id.  308  ;  Thorp  v.  Bate- 
man,  37  Mich.  68. 

2  Livingston  v^  Ackeston,  5  Cow.  531. 

3  ]\Iattby  V.  Harwood,  12  P.arb.  473. 
*  Cropsey  v.  Sweeny,  27  Barb.  310. 


MASTER   AND    SERVANT.  349 

knew  when  it  was  being  rendered  that  the  relation  supposed  to 
require  the  service  did  not  exist,  he  should  be  held  liable,  as  there 
would  be  nothing  adverse  to  the  principal  rule  governing  this  sub- 
ject, that  one  who  knowingly  receives  the  services  of  another  of  a 
nature  beneficial  to  himself,  impliedly  promises  to  pay  for  them. 

A  word  may  be  added  as  to  a  "  volunteer  servant."  This 
expression  includes  one  who,  perhaps  observing  that  the  servants 
of  a  master  find  a  difficulty  in  the  performance  of  an  assigned  task, 
volunteers  to  aid  them  in  the  absence  of  the  master.  In  such  a 
case  no  claim  can  be  made  for  compensation.  \ 

There  is,  however,  a  distinction  between  a  mere  volunteer  who 
takes  upon  himself  all  the  risks  of  the  employment,  and  one  who 
assists  with  the  master's  consent  for  the  purpose  of  expediting  the 
delivery  of  his  own  goods,  or  the  like.  In  this  case  the  transac- 
tion is  of  common  benefit  to  both  parties,  and  prevents  him  from 
being  regarded  as  a  volunteer.  He  is  not  a  oo-servant,  and  would 
have  an  action  against  the  master  if  he  were  injured  by  the  negli- 
gence of  those  whom  he  aided,  or  if  the  premises  on  which  he  was 
invited  to  go  in  order  to  render  the  service  were  in  an  insecure 
condition  through  the  neglect  of  the  person  who  gave  the  invita- 
tion.i 

1  Wright  V.   London  &  N.   W.  R.  R.  with  Deggv.  Midland  R.  R.  Co.,  1  H.  &  N. 

Co.,  L.  R.  1  Q.  B.  Div.  252  ;  s.  c.  L.  R.  773  ;  Potter  v.   Faulkner,   1  B.   &  S.  800. 

10  Q.  B.  298  ;  Holmes  v.  N.  E.  R.  R.  Co.,  In  the  two  last  cited  cases,  the  party  was 

L.  R.  4  Exch.  254.      Compare  these  cases  a  mere  volunteer  and  without  remedy. 


CHAPTER  XT. 

CORPORATIONS. 

DIYISION   I.  —  General  Rules  Applicable  to  all  Corporations. 

Section  I.  Classification  of  Corporations. — A  corporation  is  an 
artificial  person,  created  by  law.  having  a  continuity  of  existence, 
either  definite  or  indefinite,  and  capacity  to  do  authorized  acts, 
and  capable,  however  numerous  the  persons  that  compose  it  may 
be,  of  acting  as  a  single  individual. 

The  leading  points  in  this  definition  are  Cl)  that  a  corporation 
is  an  artificial  person :  (2)  that  it  is  created  hy  law,  and  not  by 
contract;  (3)  that  it  has  a  continuity  of  existence.  This  does  not 
necessarily  mean  that  it  has  a  perpetual  existence.  It  may  be 
created  to  continue  for  thirty  or  fifty  or  other  number  of  years. 
All  that  is  meant  is  that,  while  it  lasts,  its  existence  is  continuous, 
and  made  so  by  a  mode  of  succession  of  members  established  by 
law.  (4)  It  has  capacity  to  act  as  a  single  person.  Nothing  is 
so  characteristic  of  a  corporation  as  the  fact  that  it  is  made  by  law 
an  artificial  person.  It  has  a  standing  in  court  as  a  person.  The 
word  "  person  "  in  a  statute  will  ordinarily  include  a  corporation.^ 
Nothing  of  this  kind  can  be  attributed  to  other  assemblages  of 
natural  persons.  The  members  of  a  partnership  cannot  by  con- 
tract make  themselves  a  person.  Should  they  adopt  a  conventional 
name  they  could  not  make  contracts  or  do  other  acts  in  that  name. 
They  could  not  sue  in  that  name,  while  corporations  not  only 
may,  but  in  general  must,  sue  and  be  sued  by  a  name  given  to  them 
by  law.  The  ordinary  consequences  of  personality  follow.  The 
agent  of  a  corporation  is  not  the  agent  of  its  members.^  The 
individual  members  do  not  own  the  property.^  They  cannot 
transfer  it  to  third  persons.  The  corporation,  as  a  legal  person, 
manages,  owns,  and  can  alone  transfer  the  property.  Such  an 
expression  as  a  "  living  person  "  may  also  include  a  corporation.* 

'■  People  V.  Trinity  Church,   22  N.  Y.  Micldes  v.  Rochester  City  Bank,  11  Paige, 

44,  57.  118. 

2  Moffat  V.  Winslow,  7  Paige,  124.  *  La  Farge  v.  Exchange  Fire  Ins.   Co., 

3  Wilde    V.    Jenkins,    4    Paige,    481 ;  22  N.  Y.   352  ;  Boyd  v.   Croydon    R'vvay 

Co.,  4  Bing.  N.  C.  669. 


CORPORATIONS.  Sol 

A  stock  corporation  should  be  distinguished  from  an  ordinary 
partnership  and  that  form  of  the  latter  which  is  termed  a  •'  joint 
stock  company."  The  leading  differences  between  a  stock  corpo- 
ration and  a  partnership  are  these  :  (1)  the  corporation  is  created 
by  law;  the  partnership  by  contract.  (2)  The  corporation  is  a 
"  person "  ^  and  can  make  contracts  and  sue  and  be  sued  by  its 
corporate  name ;  a  partnership  is  not  a  "  person,"  but  a  collection 
of  individuals,  and  can  only  sue,  etc.,  in  the  names  of  ail  its  mem- 
bers who  are  known,  and  cannot  legally  act  by  an  assumed  name. 
(3)  A  judgment  against  the  corporation  only  binds  the  corporate 
property  ;  a  judgment  against  the  members  of  a  partnershi])  binds, 
not  only  the  firm  property,  but  their  individual  assets.  The  mem- 
bers are  said  to  be  liable  in  solido,  or  absolutely. 

A  "  joint  stock  company,"  not  incorporated,  is  but  a  special 
form  of  partnership,  having  its  capital  divided  into  shares.  The 
characteristic  distinctions  between  it  and  a  corporation  are 
essentially  the  same  as  between  an  ordinary  partnership  and 
a  corporation. 

Corporations  may  be  classified  from  different  points  of  view. 
(1)  When  considered  in  reference  to  the  number  of  members,  they 
are  aggregate  or  sole.  A  "  sole  "  corporation  consists  of  a  single 
individual,  having  an  artificial  or  legal  personality  distinguished 
from  his  natural  character.  A  king  in  a  monarchical  country  is 
an  example.  A  corporation  consisting  of  two  or  more  members 
is  aggregate.  (2)  When  a  corporation  is  regarded  from  the  point 
of  view  of  its  being  an  instrument  of  government^  it  is  called  public. 
"  Municipal  "  is  the  equivalent  of  "  public."  Cities,  towns,  and 
villages  are  public  corporations  ;  all  other  corporations  are  pri- 
vate. (3)  A  further  division,  depending  on  the  nature  of  the. 
purposes  for  which  the  corporation  is  organized,  is  into  ecclesias- 
tical and  lay.  This  last  mode  of  classification  is  of  no  practical 
value  in  the  United  States,  since  there  are  no  ecclesiastical  cor|)o- 
rations  here.  All  corporations,  including  churches,  arc  lay.  A 
distinction  in  lay  corporations  is  drawn  between  civil  and  elee- 
mosynary, the  latter  being  established,  not  for  profit,  but  for 
charitable  purposes.  The  word  "  charitable  "  is  more  commonly 
used  in  modern  law  than  "  eleemosynary."  These  distinctions^ 
run  into  each  other,  so  that  a  corporation  may  be  sole  and  public, 
or  aggregate  and  public.  It  may  also  be  both  public  and  chari- 
table. Thus,  a  city,  though  in  one  aspect  a  public  corporation, 
may,  from  another  point  of  view,  be  a  charitable  one. 

The  term  "stock  corporation"  is  much  in  use.     This  is  de- 

1  A  private  corporation  is  <a  "  person  "  United  States  Constitntion.  Pembina 
under  the  Fourteenth  Amendment  to  the     Mining  Co.  v.  renns3-lvania,  125  U.  S.  181. 


352  THE   LAW    OF   PERSONS. 

scriptive  of  a  private  corporation  whose  stock  is  divided  into 
shares,  such  as  a  railroad  or  a  bank. 

The  phrase  "  quasi  corporation  "  means  an  organization  having 
some  of  the  powers  of  a  corporation,  but  yet  not  completely  in- 
corporated. It  is  for  the  most  part  of  a  public  or  semi-public 
nature.  It  is  a  question  of  local  policy  whether  to  give  such  an 
organization  full  corporate  i)ovvers,  or  only  to  a  qualified  extent. 
Thus,  towns  in  the  State  of  Massachusetts  are  fully  incorporated  ; 
in  New  York  they  are,  for  the  most  part,  mere  political  divisions, 
and  have  very  slender  corporate  powers.^  Other  instances  of 
quasi  corporations  are  trustees  of  school  districts  and  counties. 
Similar  theories  prevail  in  England,  where  there  are  instances 
both  of  aggregate  and  sole  quasi  corporations,  such  as  church 
wardens,  overseers  of  the  poor,  the  Lord  Chancellor,  etc.^ 

The  distinction  between  public  and  private  corporations  is  im- 
portant in  this  country  for  a  special  reason.  This  is  owing  to  a 
clause  in  the  United  States  Constitution  that  "  no  State  shall  pass 
any  law  impairing  the  obligation  of  contracts."  A  private  corpora- 
tion is  deemed  to  originate  in  contract,  while  a  public  corporation 
is  not,  being  rather  an  instrument  of  government.  A  charter  of  a 
private  corporation,  being  a  contract,  cannot  be  changed  without 
the  consent  of  the  corporation.^  The  effect  of  this  rule  has  been 
to  a  large  degree  nullified  by  the  insertion  of  clauses  in  the 
charter,  or  in  some  law  applicable  to  the  case,  that  the  legislature 
may  at  any  time  alter  or  repeal  the  incorporating  act.  Such  a 
law  is  held  to  be  a  part  of  the  contract  created  by  the  charter, 
and  leaves  the  legislature  free  to  make  amendments  so  far  as  the 
constitutional  inhibition  is  concerned. 

Corporations  may  also  be  considered  from  the  point  of  view  of 
being  either  "  domestic"  or  "foreign."  This  is  not  a  distinction 
as  to  the  nature  of  the  corporation,  but  simply  turns  upon  its 
status,  or  legal  condition.  If  it  act  or  sue  or  be  sued  in  the  State 
or  country  where  it  is  created,  it  is  regarded  as  a  domestic 
corporation.  On  the  other  hand,  if  legal  inquiries  concerning  its 
conduct  come  up  in  a  different  State  or  country,  it  is  in  such 
aspects  termed  "  foreign."  In  the  absence  of  restrictions,  a  cor- 
poration chartered  in  a  State  may  make  contracts  and  do  other 
acts  elsewhere,  provided  that  they  are  embraced  within  the  terms 
of  its  charter.*     It  may,  however,  be  restricted  by  foreign  law. 

1  Lorrillard  v.  Town  of  Monroe,  11  '^  Dartmouth  College  v.  Woodward,  4 
N.  Y.  392.  Wheat.  518. 

2  The  English  authorities  are  collected  *  Bank  of  Augusta  v.  Earle,  13  Pet. 
in  Brice  on  Ultra  Vires  (Loud.  ed.  1874),  519,  588  ;  La  Fayette  Ins.  Co.  v.  French, 
pp.  17,  18  ;  (2d  ed.)  pp.  26-28.  18  How.  U.  S.  404. 


coriPOKATio:N-s.  353 

This  distinction  becomes  important  as  between  the  States  of  the 
Union.  There  is  nothing  in  the  United  States  Constitution  to 
prevent  a  State  from  exchiding  a  foreign  corporation  created  by 
another  State  from  doing  business  within  its  borders.^  Thus,  it 
may  prohibit  foreign  insurance  companies  from  insuring  prop- 
erty within  its  limits.  That  article  of  the  Constitution" which 
provides  that  the  citizens  of  each  State  shall  be  entitled  to  "  all 
privileges  and  immunities  of  citizens  in  the  several  States,"  is  not 
infringed,  since  that  refers  to  individual  citizenship,  and  not  to  a 
mere  creation  of  local  law,  such  as  a  corporation  is.  Its  recog- 
nition, as  well  as  the  enforcement  of  its  contracts  in  another  State, 
is  purely  a  matter  of  comity  or  courtesy .2  Accordingly,  if  a  State 
has  the  power  to  exclude  a  foreign  corporation  from  doing  busi- 
ness therein,  it  may  impose  conditions  upon  its  permission,  such 
as  the  payment  of  a  tax  considered  as  a  license  fee.^ 

A  State,  however,  cannot,  in  giving  its  assent  to  the  transaction 
of  the  corporate  business  therein,  lawfully  impose  as  a  condition 
the  surrender  by  the  foreign  corporation  of  a  privilege  secured  to 
it  by  the  Constitution  and  laws  of  the  United  States"  An  exam- 
ple is,  a  stipulation  exacted  that  the  corporation  will  not  remove 
a  suit  against  it  in  a  State  court  into  a  Federal  court,  which,  by 
the  laws  of  the  United  States  it  would  have  the  right  to  do.'*  A 
State  statute  cannot  make  an  agreement  by  the  corporation  to 
such  an  effect  valid,  since  the  statute  itself  v\'ould  be  unconstitu- 
tional and  void.^  A  State  might  as  well  pass  a  statute  to  deprive 
an  individual  citizen  of  another  State  of  his  right  to  remove  such 
suits.^ 

Notwithstanding  what  lias  just  been  said  as  to  a  corporation 
not  being  a  citizen  for  certain  purposes,  the  question  still  remains 
whether  it  is  not  a  "  citizen"  within  that  clause  of  the  Constitu- 
tion which  confers  judicial  power  upon  tlie  Federal  courts."  This 
clause  allows  a  citizen  of  one  State  to  be  sued  l>y  a  citizen  of 
another  State  in  the  Federal  court.  The  result  of  prolonged 
judicial  discussion  upon  this  point  is,  tliat  while  a  corporation  is 
not  strictly  a  citizen,  yet  its  members  will  be  conclusively  pre- 
sumed for  the  purposes  of  this  section  to  be  citizens  of  the  State 
creating  the  corporation.     It  was  on  this  ground  that  the  court 

^  Paul  V.  Virginia,  8  Wall.  168.  poration  had  entered  into  the  agi-eenient 

^  Id.  required  by  the  State  statute,  while  iu  the 

3  Phila.  Fire  Assoc.    .  New  York,  119  case  of  Barron  v.   Burnside,  it  had  not. 

U.  S.  110.  The  distinction  between  the  two  classes  of 

*  Barron  v.  Burnside,  121  U.  S.  186.  cases  was  declared  to  be  immaterial. 
5  Insurance    Co.    v.   Morse,    20   "Wall.  ^  Barron  v.  Burnside,  supra,  p.  200. 

445  ;    Doyle  v.   Continental   Ins.   Co.,  94  "^  Art.  III.  §  2,  cl.  1. 

U.  S.  535.     In  the  two  last  cases  the  cor- 

23 


354  THE    LAW    OF    PERSONS. 

was  able  to  reach  the  conckision  in  the  case  of  Barron  v.  Burn- 
side,  already  cited,  that  the  stipulation  of  the  corporation  not  to 
sue  in  the  Federal  courts  was  void. 

Section  II,  The  Creation  of  Corporations.  —  Corporations  may 
be  created  in  a  number  of  ways,  —  by  prescription,  by  charter 
granted  by  the  king,  or  by  act  of  Parliament,  or,  in  this  country, 
by  the  legislature. 

A  corporation  is  said  to  be  created  by  prescription  when  it  has 
assumed  to  act  as  a  corporate  body  without  legal  question  for  a 
prescribed  number  of  years.  The  consent  of  the  State  is  pre- 
sumed after,  say,  twenty  years.  There  is  a  legal  fiction  resorted 
to  that  there  has  been  a  charter  but  that  it  has  been  lost.^  This 
theory  may  be  resorted  to  when  a  charter  or  act  of  incorporation 
has  in  form  been  granted,  but  it  has  been  so  defectively  drawn 
that  it  does  not  actually  incorporate  the  parties  named,  though 
they  have  acted  under  its  provisions. 

Formerly,  a  large  part  of  the  corporations  in  England  were 
created  by  the  king.  While  the  king  could  create  an  artificial 
person,  he  could  not  confer  upon  it  the  full  powers  which  could 
be  given  by  the  legislature.  For  example,  he  could  not  give  the 
authority,  now  so  frequently  needed  by  railroad  companies  and 
the  like,  to  take  land  from  owners  by  compulsory  measures  for 
their  use.  Such  a  power  can  only  be  derived  from  the  legislature. 
For  this  and  other  reasons,  most  of  the  corporations  now  created 
in  England  are  created  by  Act  of  Parliament.  Such  charters  as 
the  king  granted  in  this  country  before  the  Revolution  still  remain 
in  force.2  The  king  may  exercise  his  power  by  delegation  to  an- 
other as  well  as  by  a  direct  act  of  creation. 

The  only  direct  mode  of  creating  a  corporation  in  this  country 
is  by  an  act  of  the  State  legislature  or  of  Congress.  The  power 
of  Congress  was  at  one  time  much  disputed,  but  without  success. 
Though  there  are  no  express  words  in  the  Constitution  on  the 
subject,  the  power  may  be  exercised  under  the  general  principle 
that  wherever  a  power  is  granted,  there  is  bestowed  by  impli- 
cation a  power  to  make  use  of  all  such  means  as  are  necessary 
and  requisite  to  carry  into  effect  the  power  granted.^  Congress 
has  under  this  doctrine  created  great  railroad  corporations  as 
well  as  chartered  national  banks  and  other  instrumentalities  of 
government. 

The  main  power  to  create  corporations  is  vested  in  the  State 

1  See  on  the  general  subject,  Queen  v.  2  Dartmouth    College    v.    "Woodward, 

Durham,  10  Mod.   146  ;  Jenkins  v.   Har-  4  Wheat.  518. 

vey,  2  C.  M.  &  R.   393  ;  Angell  &  Amos         3  McCulloch   v.    State  of  Maryland,  4 

on  Corporations,  §§  69-71.  Wheat.  316,  421. 


COEPORATIOXS.  355 

legislatures.  There  is  little  or  no  restriction  upon  this  power, 
except  some  regulations  in  some  of  the  State  constitutions,  not 
designed  to  limit  the  power,  but  to  mark  out  the  true  mode  of  its 
exercise,  —  such  as  provisions  that  corporations  shall  be  created 
under  general  laws  where  that  mode  of  proceeding  is  feasible. 

A  corporation  is  said  to  be  created  under  a  general  law,  when 
a  legislature  prescribes  a  corporate  formula  by  statute,  pointing 
out  various  acts  which  must  be  done  by  persons  desiring  to  be 
incorporated  for  some  specified  purpose,  in  order  that  they  may 
become  a  corporation.  This  course  results  in  an  indefinite  num- 
ber of  corporations,  since  the  theory  is,  that  there  is  no  element 
of  exclusiveness,  but  that  all  who  desire  to  be  incorporated  may 
become  so  by  a  compliance  with  the  prescribed  formula.  This 
formula  is  not  the  same  in  all  respects  in  the  various  States,  nor 
even  for  all  corporations  in  the  same  State.  A  general  outline  of 
it  is,  that  a  paper  is  drawn  up,  setting  forth  the  names  and 
number  of  the  corporators,  with  mention  of  future  associates,  the 
proposed  name  of  the  corporation,  the  capital  (if  any),  the  direc- 
tors or  trustees  for  the  first  year,  the  period  during  wliich  the 
corporation  is  to  continue  in  existence,  etc.^  This  document  is 
signed  by  the  proposed  corporators,  and  the  signatures  are  ac- 
knowledged before  some  prescribed  officer,  and,  when  complete,  it 
is  filed  in  a  prescribed  public  office,  whereupon  the  parties  become 
a  corporation.  If  the  formula  is  not  complied  with,  there  will  be 
no  corporation.^ 

It  will  be  convenient  in  the  course  of  the  discussion  of  this 
subject  henceforward,  to  use  a  single  term  to  express  the  mode 
of  creating  a  corporation.  The  word  "  charter  "  is  a  well-known 
popular  word,  and  though  strictly  only  applicable  to  corporations 
created  by  the  king,  it  will  be  used  for  the  present  purpose  as  a 
generic  word  expressing  any  and  all  modes  whereby  corporations 
are  brought  into  existence.  There  are  several  leading  rules  gov- 
erning the  creation  of  corporations  which  will  be  briefly  referred  to. 

(1)  It  is  not  necessary  that  the  corporation  should  be  created 
in  so  many  words,  though  that  course  is  usual.  If  powers  be 
granted  to  a  body  of  men  which  cannot  be  exercised  without  cor- 
porate authority,  corporate  existence  may  be  implied.  This  is 
termed  creation  by  implication.^ 

(2)  The  proposed  corporators  should  accept  the  charter.  This 
rule  is  to  be  inferred  from  the  fact  that  a  charter  constitutes  a 
contract.     The  rule,  however,  does  not  apply  to  a  public  corpora- 

1  The  statutes  must  be  consulted  for  ^  Conservators  of  the  River  Tone  v. 
details  and  carefully  followed.                        Ash,  10  B.  &  C.  349. 

2  DeWitt  V.  Hastings,  69  N.  Y.  518. 


356  THE   LAW   OF    PERSONS. 

tioii.  Acceptance  may  be  either  express  or  implied  from  action 
under  the  charter  which  is  technically  termed  "  user."  i  It  may 
be  added  that  persons  who  have  contracted  with  it  as  a  corporation 
may  be  by  their  action  precluded  from  denying  its  existence,  or, 
in  legal  phrase,  estopped. 

(3)  A  corporation  should  have  a  name  by  which  it  may  sue  and 
be  sued,  or  perform  other  legal  acts.  The  name  is  either  conferred 
by  the  legislature  or  assumed  by  the  corporation  itself  when  organ- 
ized, under  a  general  law.  A  corporation  has  no  inherent  power 
to  change  its  name.^  The  name  may  be  changed  either  by  special 
act  of  the  legislature  or  by  acting  under  some  provision  of  a 
general  law  applicable  to  the  case. 

A  party  who  has  contracted  with  a  corporation  under  a  false 
name  may  insist  that  the  corporation  is  estopped  to  deny  that  the 
name  used  by  it  is  its  true  name,  much  in  the  same  way  as  a 
natural  person  would  be  estopped  under  like  circumstances. 

Section  III.  The  Powers  of  Corporatio7is.  —  I.  The  doctrine  of 
ultra  vires.  —  By  the  expression  "  ultra  vires  "  is  meant  an  act 
on  the  part  of  the  corporation  transgressive  of  its  powers.  For 
a  correct  view  of  this  subject  it  should  be  considered  that  a  cor- 
poration does  not  as  a  rule  have  free  power  to  act  and  contract 
such  as  that  which  a  natural  person  possesses.  It  is  organized 
for  some  declared  purpose,  such  as  for  banking,  building  or  operat- 
ing a  railroad,  insuring  against  fire  or  marine  disaster,  and  the 
like.  Its  contracts  must,  accordingly,  be  brought  within  the  limi- 
tations prescribed  by  the  charter,  which  must  be  regarded  as  its 
organizing  and  fundamental  law.  If  these  be  transgressed,  there 
is  a  case  of  ultra  vires.  The  question  then  arises  as  to  the  effect 
of  the  contract  made  or  act  done  in  violation  of  its  organizing  law. 
Is  it  utterly  void  so  that  the  corporation  can  set  up  its  invalidity, 
although  it  may  have  received  the  benefit  of  it,  or  does  some  other 
rule  prevail  ?     These  points  will  be  briefly  considered. 

In  the  outset,  it  must  be  stated  that  the  expression  "  ultra  vires  " 
is  used  in  two  quite  different  senses,  particularly  in  reference  to 
stock  corporations,  in  which  the  capital  is  subscribed  or  owned  by 
stockholders,  while  the  management  is  by  a  board  of  trustees  or 
directors.  One  signification  implies  that  the  directors  have  exceeded 
their  powers,  and  thus  violated  their  duty  to  the  stockholders  ;  and 
the  other,  and  more  appropriate,  embraces  the  case  where  the  cor- 
poration itself,  be  it  a  stock  corporation  or  any  other,  goes  beyond 
the  authority  which  the  State  has  conferred  upon  it.  This  last  is 
a  true  usurpation  of  authority,  and  is,  so  far  as  the  State  is  con- 

1  M.  E.  Union  Church  v.  Tickett,  19  ^  Tj^g  Queen;;.  Registrar  of  Joint  Stock 

N.  Y.  482.  Companies,  10  Ad.  &  Ell.  N.  s.  839,  8i4. 


COKPORxVTIONS.  357 

cerned,  violative  of  duty  to  it  and  a  cause  of  forfeiture  of  corporate 
rights.  In  the  first  case,  there  is  presented  the  instance  of  an 
agent  overstepping  the  bounds  of  authority.  This  is  a  breach  of 
duty  towards  the  stockliolders,  and  may  be  waived  by  their  con- 
sent, with  full  knowledge  of  the  facts ;  but  where  there  is  no 
waiver,  the  action  of  the  directors  will  bo  a  breach  of  trust.  The 
opinion  in  a  recent  Englisli  case^  refers  to  this  sense  of  ultra  vires 
when  it  says  that,  as  between  a  corporation  and  its  stockholders, 
it  is  a  great  and  cardinal  principle  of  law  that  the  funds  are  not 
to  be  used  by  the  governing  body  for  any  purpose  different  from 
that  for  which  they  were  contributed.  Such  a  use  would  be  an 
instance  of  ultra  vires.  With  this  distinction  in  view,  the  discus- 
sion will  be  confined  to  the  case  where  either  the  directors  or  the 
corporation  exceeds  the  powers  conferred  upon  it  by  its  charter. 

It  may  be  urged  that  if  the  directors  do  such  an  act  without  the 
consent  of  the  corporation,  it  is  a  matter  between  the  managers 
and  the  company  with  which  the  public  at  large  have  no  especial 
concern ;  on  the  other  hand,  it  is  plain  that  there  is  an  element  of 
public  policy  in  the  case,  which  makes  the  transgressive  act  illegal 
and  void  in  all  respects,  even  as  to  the  corporation  itself.  If  tliis 
view  be  correct,  no  sanction  by  the  shareholders  will  make  the 
transaction  valid. 

The  correct  opinion  seems  to  be  that  an  act  ultra  vires  in  this 
sense  is,  when  considered  as  a  contract  binding  on  the  company, 
without  force,  and  void.  It  is  in  fact  a  case  of  wa^it  of  capacity^ 
such  as  the  incapacity  of  a  married  woman  at  common  law  to 
make  a  contract.  The  party  contracting  with  the  cor{)oration  is 
bound  to  know  the  law,  and  usually  has  means  of  knowledge  of 
the  want  of  power  on  the  part  of  the  corporation  by  recourse  to 
the  statute  books.  In  this  view  it  makes  no  difference  whether 
tlie  contract  is  wholly  executory  or  partly  performed,  or  wholly 
performed.  No  action  will  lie  on  the  contract,  —  that  is,  no  action 
based  on  the  theory  that  there  is  a  subsisting  contract  between  the 
corporation  and  the  plaintiff. 

It  is  quite  a  diiferent  question,  whether  the  opposite  party  may 
not  have  remedies  growing  out  of  the  non-existence  of  the  intended 
contract,  —  such  as,  for  example,  to  recover  an  dmount  equal  to  the 
advantage  which  the  corporation  has  received  from  tlie  unautho- 
rized act  of  dealing, —  or  whether  money  advanced  cannot  be  re- 
covered as  upon  failure  of  consideration.  There  are  cases  in  which 
a  recovery  has  been  had  on  this  ground,  applicable  to  natural 
persons  as  well.  Tliese  cases  rest  on  the  principle  that  it  is 
inequitable  and  unjust  to  retain  money  paid  upon  a  supposed  con- 

1  Pickering  v.  Stephenson,  L.  R.  14  Eij.  322. 


358  THE   LAW    OF    PERSONS. 

sideration  which  does  not  in  fact  exist.^  Still,  it  is  understood  to 
be  the  rule  in  the  English  courts  that  even  this  ground  is  only 
maintainable  under  special  circumstances. ^ 

Most  of  the  cases,  as  to  which  there  is  a  diversity  of  opinion, 
do  not  turn  upon  the  principle  of  law  applicable,  but  upon  the 
question  whether  the  facts  show  a  case  of  ultra  vires.  This  is 
frequently  a  matter  of  the  utmost  difficulty  as  involving  the  con- 
struction of  obscurely  written  statutes,  and  of  determining  how 
far  the  disputed  power  may  be  implied  from  the  language  used. 
A  notable  case  of  this  kind  is  referred  to  in  a  note.^ 

The  leading  case  in  New  York  developed  a  serious  difference 
of  opinion  among  the  judges  as  to  the  effect  of  acts  ultra  vires, 
it  being  held  in  the  opinion  of  one  eminent  judge  that  it  did  not 
make  a  contract  void,  while  in  that  of  another,  no  less  able  and 
eminent,  it  was  considered  that  the  contract  was  utterly  void.* 
It  is  believed  that  the  latter  view  will  ultimately  prevail  as  a 
question  of  capacity. 

The  view,  however,  is  taken  that  even  if  the  contract  be  void, 
yet  if  the  corporation  enter  upon  the  undertaking  and  act  negli- 
gently, so  as  to  injure  the  party  with  whom  it  assumed  to  contract, 
he  will  have  an  action  for  negligence,^  It  is  further  held  that 
the  presumption  is  in  favor  of  the  view  that  the  corporation  has 
not  acted  in  excess  of  its  powers,  and  that  the  burden  of  proof 
is  upon  one  who  attacks  a  transaction  on  this  ground,  to  show 
that  it  was  ultra  vires.  Every  presumption  is  to  the  contrary.*^ 
In  the  cases  already  referred  to,  in  which  the  act  done  by  the 

1  Parish  v.  "Wheeler,  22  N.  Y.  494,  cases  cited,  and  the  arguments  of  the  enii- 
508,  509  ;  Castle  v.  Lewis,  78  Id.131,  135  ;  nent  counsel  are  a  storehouse  of  informa- 
Woodruff  V.  Erie   R'vvay  Co.,  93   Id.  609,     tion. 

618,  619  ;  Manville  v.  Belden  Mining  Co.,  *  Bissell  v.  Mich.  So.   &  N.   I.   R.  R. 

17  Fed.  R.  425.     These  cases  do  not  refer  Go's.,  22  N.  Y.  258  ;  Madison  Ave.  Bap. 

to  instances  where  the  contract  is  in  itself  Ch.  v.  Oliver  St.  Bap.   Ch.,  73  N.  Y.  82, 

illegal  or  immoral.  90. 

2  Brice  on  Ultra  Vires,  521,  522  ;  (2d  &  Buffett  v.  Troy  &  Boston  R.  R.  Co., 
ed.)  pp.  764-765.  40  N.  Y.   168.     The   plea  of  idira  vires 

3  The  case  referred  to  in  the  text  is  should  not,  as  a  general  rule,  prevail, 
Taylor  v.  Chichester  &  M.  R'way  Co.,  whether  interposed  for  or  against  a  cor- 
L.  R.  4  H.  L.  628.  In  the  lower  court  of  jioration,  when  it  would  not  advance 
first  instance  the  contract  was  held  not  to  justice,  but,  on  the  contrary,  would  acconr- 
be  iclira  vires,  4  H.  &  C.  409.  The  judg-  plish  a  legal  wrong.  AVhitney  Arms  Co. 
ment  was  reversed  in  the  Exchequer  v.  Barlow,  63  N.  Y.  62,  69  ;  Boston  & 
Chamber  (L.  R.  2  Exch.  356)  by  four  Prov.  R.  R.  Co.  y.  N.  Y.  &  N.  E.  R.  R. 
judges  against  two,  on  the  ground  that  it  Co.,  13  R.  I.  260  ;  Rider  Life  Eaft  Co.  v. 
was  ultra  vires.     This  last  judgment  was  Roach,  97  N.  Y.  378. 

reversed  in   the  House  of  Lords  on   the  "  Shrewsbury     &    Birmingham    R'way 

ground  that  the  corporation  had  not  ex-  Co.  v.  N.    W.  R'way  Co.,  6  H.  L.  Cases, 

ceeded  its  powers.     In  the  course  of  the  113,  135,  136. 
discussion   there   was  a   vast  number   of 


COKPOEATIONS. 


359 


directors  of  a  coi-poration  is  of  such  a  nature  that  tliouoh  in 
excess  of  power  it  only  affects  the  interest  of  the  stockholders, 
a  ratification  by  them  would  make  the  act  valid,  (a)  This  seems 
to  be  no  more  than  ratification  by  a  principal  of  an  agent's  un- 
authorized act.i  The  stockholders,  having  confirmed  the  act, 
would  be  estopped  to  deny  its  validity  in  favor  of  one  who  had 
acted  in  good  faith.  If  stockholders  do  not  ratify,  there  is  a 
remedy  by  injunction.^ 

There  is  in  practice  a  marked  distinction  made  by  some  authori- 
ties between  executory  and  executed  contracts.  While  executed 
contracts  in  excess  of  power  are,  as  has  been  seen,  in  some  in- 
stances so  far  upheld  as  to  preclude  the  corporation  from  setting 
up  the  excess  in  defence,  this  doctrine  cannot  be  applied  to  execu- 
tory contracts,  which  are  utterly  void.^  (Z>) 

A  mere  stranger,  such  as  a  competitor  for  business,  cannot 
raise  the  question  of  ultra  vires^  The  reports  abound  in  cases 
where  the  question  of  ultra  vires  has  been  raised,  either  success- 
fully or  unsuccessfully.^  They  depend  largely  upon  the  construc- 
tion of  particular  charters,  and  require  so  much  detail  for  their 
elucidation  that  they  lie  beyond  the  compass  of  this  work. 
Reference  may  usefully  be  made  to  the  excellent  work  of  Brice  on 
Ultra  Vires.6 


1  Kent  V.  Quicksilver  IMiiiing  Co.,  78 
X.  Y.  159,  186  ;  Rider  Life  Raft  Co.  v. 
Roach,  97  N.  Y.  378. 

-  Elkins  V.  Canideu  &  A.  E..  E..  Co., 
36  N.  J.  Eq.  5. 

3  Nassau  Bank  v.  Jones,  95  N.  Y.  115, 
123. 

*  Railroad  Co.  v.  Ellerman,  105  U.  S. 
1G6. 

^  It  has  even  been  contested  whether 


(«)  Martin  v.  Niagara  Falls,  etc.  Co., 
122  N.  Y.  165. 

(h)  That  the  defence  of  ultra  vires  can- 
not be  interposed  where  the  contract  is 
executed,  see  Linkauf  v.  Lombard,  137 
N.  Y.  417,  423  ;  Jennison  v.  Citizens' 
Savings  Bank,  122  N.  Y.  135;  Cunning- 
ham V.  Massena  Springs,  etc.  Co.,  63  Hun, 
439  ;  Dewey  v.  Toledo,  etc.  Rj\  Co.,  91 
]\Iich.  351  ;  Railway  v.  Gentry,  69  Tex. 
625  ;  Wright  v.  Hiighes,  Assignee,  119 
Lid  324.  To  the  contrary  are,  Chewacla 
Lime  Works  v.  Dismukes,  87  Ala.  344  ; 
Central  Transp.  Co.  v.  Pullman's  Car  Co., 
139  U.  S.  24.  In  this  case  the  view  of 
the  Supreme  Court  of  the  United  States 


the  employment  of  a  policeman  by  a  rail- 
way company  to  protect  its  property  was 
not  ultra  vires.  It  was  decided  that  it 
was  not.  Edwards  v.  Midland  R'way  Co., 
L.  R.  6  Q.  B.  Div.  287. 

^  The  doctrine  of  ultra  vires,  with  some 
of  its  applications,  was  gi-eatly  considered 
in  a  series  of  cases  growing  out  of  a  loan 
made  by  Lord  Wenlock  to  the  River  Dee 
Company.     An   important    question   was 


is  said  by  Mr.  Justice  Gray  to  be  as  fol- 
lows :  "  A  contract  of  a  corporation,  which 
is  ultra  vires  in  the  proper  sense,  —  that  is 
to  say,  outside  the  object  of  its  creation 
as  defined  in  the  law  of  its  organization, 
and  thei'efore  beyond  the  powers  conferred 
upon  it  by  the  legislature,  —  is  not  void- 
able only,  but  wholly  void,  and  of  no  legal 
effect.  The  objection  to  the  contract  is 
not  merely  that  the  corporation  ought  not 
to  have  made  it,  but  that  it  could  not 
make  it.  .  .  .  No  performance  on  either 
side  can  give  the  unlawful  contract  any 
validity,  or  be  the  foundation  of  any  right 
of  action  upon  it."  p.  59. 


360  THE   LAW    OF   PEKSONS. 

II.  Powers  as  to  succession  of  members,  including  amotion  and 
disfranchisement.  —  The  capacity  of  causing  a  succession  of  mem- 
bers, on  the  death  or  resignation  of  corporators,  is  one  of  the 
leading  advantages  that  a  corporation  possesses.  If  there  he 
several  co-owners  of  property,  who  are  not  incorporated,  on  the 
death  of  each  the  share  is  transmitted  to  heirs  or  executors,  as 
the  case  may  be,  and  the  design  of  the  joint  ownership  may 
be  entirely  frustrated ;  but,  in  a  corporation,  the  artificial  person 
continues,  though  the  entire  membership  may  be  changed,  and 
that,  too,  even  many  times. 

The  mode  of  succession  varies  with  the  nature  of  the  case. 
In  some  instances  it  is  derived  from  election ;  in  others,  as  in 
the  case  of  municipal  corporations,  it  may  be  derived  from  inhab- 
itancy of  the  city  or  town ;  in  others  still,  as  in  a  trading  corpo- 
ration, from  the  ownership  of  shares  or  stock.  The  rules  of 
succession  necessarily  vary  to  adapt  themselves  to  the  particular 
case,  and  will  be  treated  separately. 

(1)  The  first  case  to  be  considered  is  where  the  membership  is 
definite  and  fixed  in  number.  This  is  true  in  general  of  chari- 
table corporations,  such  as  colleges,  hospitals,  dispensaries,  and  a 
great  variety  of  others,  not  organized  for  profit. 

Where  an  election  of  a  member  or  members  is  desired,  a  ma- 
jority of  the  members  named  in  the  charter  of  such  a  corporation 
meet  at  an  appointed  place  and  time.  It  will  not  be  sufficient  to 
ascertain  their  will  by  consulting  them  separately.     They  must 

involved  as  to  whether  the  right  to  bor-  more,  and  the  assent  of  every  individual 
row  money  by  a  corporation  was  regularly  lueinber  will  not  make  the  loan  valid, 
implied  by  law,  and  whether  this  implica-  Baroness  Wenlock  v.  River  Dee  Co. ,  L.  R. 
tion,  if  it  existed,  could  be  overcome  36  (Jh.  D.  674.  In  a  third  case  it  appeared 
without  ex[)ress  restrictive  words.  The  that  the  company  had  used  the  borrowed 
executors  of  the  lender  sought  to  enforce  money  to  pay  its  debts,  whereupon  the 
the  loan,  while  the  corporation,  notwith-  court  h'dd  that  a  lender  on  a  loan  ultra 
standing  it  had  received  and  expended  the  vires  may  be  subrogated  to  the  position 
proceeds  for  its  ovrn  use,  set  up  the  doc-  of  a  creditor  whose  debt  has .  been  paid 
trine  of  %dtra  vires  as  a  defence.  The  out  of  the  money  thus  lent.  This  rule 
court  held  that  by  a  reasonable  construe-  will  be  applied  even  to  debts  subsequently 
tion  of  the  statute,  the  power  to  borrow  incurred  liut  paid  out  of  the  proceeds  of 
beyond  a  sum  specified  therein  did  not  the  ultra  vires  loan.  The  counsel  for  the 
exist,  and  that  the  defence  was  good,  defendant  urged  that  this  last  proposition 
Baroness  Wenlock  v.  River  Dee  Company,  was  full  of  danger,  but  the  court  thought 
L.  R.  10  App.  Cas.  354,  referring  to  not,  since  this  rule  of  substitution  would 
Ashbury  R'way  Carriage  &  Iron  Co.  v.  not  be  relied  upon  by  money  lenders,  as 
Riche,  L.  R.  7  H.  L.  653.  In  a  second  it  had  raiely  done  more  for  any  one  than 
case,  growing  out  of  the  same  transaction,  to  "snatch  a  few  brands  from  the  burn- 
it  was  further  held  by  a  divisional  court  ing."  Baroness  Wenlock  v.  River  Dee 
(Kekewich,  J.),  that  where  a  corpora-  Co.,  L.  R.  19  Q.  B.  D.  155,166,  follo'ving 
tion  is  empowered  by  Act  of  Parliament  Blackburn  Rldg.  Society  v.  Cunliffe,  L.  K. 
to  borrow  a  certain  sum  of  money,  there  22  Ch.  D.  61. 
is  an  implied  restriction  as  to  borrowing 


CORPORATIONS.  3G1 

be  assembled  as  a  corporation  (coUegialUer')}  For  example,  a 
college  corporation  consists  of  twenty-four  members.  A  valid 
meeting  may  be  held  by  thirteen.  When  the  number  is  reduced 
by  death,  resignation,  or  otherwise,  below  thirteen,  there  can  be 
no  legal  meeting  unless  the  charter  specially  provides  to  the  con- 
trary. The  active  existence  of  the  corporation  is  suspended, 
though  it  may  be  revived  by  the  legislature.  Assuming  that 
there  is  a  valid  meeting,  a  new  member  may  be  elected  by  a 
majority  of  the  votes  actually/  cast.  Notice  of  a  meeting  must 
be  given.  Notice  of  a  regular  meeting  is  presumed.  This  is  also 
true  of  an  adjourned  meeting,  at  least  for  the  purpose  of  taking 
up  business  unfinished  at  the  regular  meeting.^  This  doctrine 
cannot  be  applied  to  a  special  meeting.  Corporators  absent  from 
a  general  meeting  cannot  be  presumed  to  know  that  a  special 
meeting  will  be  called.  Accordingly,  notice  of  such  special  meet- 
ing must  be  given.^  When  a  meeting  is  regularly  convened, 
members  abstaining  from  voting  are  not  regarded.  The  officers 
in  such  a  corporation  are  not  in  general  the  managers  of  the 
corporation,  but  are  presiding  officers,  recording  officers,  treas- 
urers, or  agents. 

Closely  connected  with  the  introduction  of  new  members  is  the 
power  of  removing  existing  members.  This  is  in  some  sense  an 
incident  to  the  power  to  perpetuate.  A  distinction  must  be  taken 
between  the  power  to  remove  a  member  and  to  remove  an  officer. 
The  first  is  called  disfranchisement ;  the  other,  amotion. 

Disfranchisement  (without  referring  to  stock  corporations) 
may  take  place  for  good  cause.  Two  general  grounds  for  re- 
moval may  be  suggested :  one,  where  an  infamous  crime  has 
been  committed  by  a  corporator,  even  though  it  have  no  special 
reference  to  corporate  duty ;  the  other,  where  there  is  a  breach  of 
corporate  duty,  though  the  act  in  itself  may  be  perfectly  innocent. 
If  the  act  charged  be  a  crime  unconnected  with  corporate  acts, 
the  corporation  cannot  try  the  question  of  innocence  or  guilt. 
That  must  be  disposed  of  by  the  courts  of  justice.  If  convicted 
of  crime,  ''  disfranchisement "  may  follow.  In  cases  of  mere 
breach  of  corporate  obligations,  the  corporation  may  dispose  of 
the  whole  question,  giving  the  member  complained  of  due  notice 
and  opportunity  to  be  heard.*     Common  instances  are  failure  to 

1  The  case  of  the  Dean,  &c.  of  Femes,  by  the  entire  bench  of  common-law  judges, 
Davies,  R.  116,  130-132.  as  well  as  by  the  House  of  Lords.     See 

2  Lorant  v.   Scadding,   13  Ad.    &   El.     also  King  v.  Hams,  1  B.  &  Ad.  936. 

N.  s.  706,  affirmed  in  the  House  of  Lords.  3  ^  People  v.  Batchelor,  22  N.  Y.   128  ; 

H.  L.  Cases,  418.     An  adjourned  meeting  Smyth  v.  Darley,  2  H.  L.  Cases,  789. 
is  there  said  to  be  a  continuation  of  the         *  Rex    v.    Richardson,    1    Burr.    517, 

original  meeting.     This  view  was  expressed  540. 


3G2  THE   L.UV   OF   PERSONS. 

attend  the  meetings  or  non-rcsidcnce,  where  attendance  and  resi- 
dence are  required.  This  subject  is  to  some  extent  in  particular 
cases  regulated  by  a  by-law,  and  then  additional  questions  will 
arise  as  to  the  reasonableness  and  validity  of  the  by-law,  which 
will  be  considered  hereafter. 

Amotion  is  a  rule  of  broader  extent  than  disfraneJiisemenf, 
applying  to  all  corporations,  and  accordingly  to  stock  corpora- 
tions, to  which  disfranchisement  has  no  common-law  application. 
By  this  term  is  meant  the  removal  of  officers  or  managers.  An 
officer  amoved  does  not  cease  to  be  a  member,  bat  only  an  officer. 
A  power  of  this  sort  is  necessary  for  the  proper  management  and 
even  continuance  of  the  corporate  institutions.^  If  the  office  be 
one  of  profit  and  emolument,  the  proceeding  to  remove  must  be  a 
quo  warranto,  which  is  a  writ  on  the  part  of  the  State,  or  less 
formal  proceeding  called  an  information,  to  ascertain  by  what 
warrant  the  alleged  officer  holds  his  office'-^  The  question  has 
been  greatly  discussed  whether,  if  an  officer  obtained  the  office  by 
a  species  of  fraud  practised  before  his  appointment,  he  could  be 
removed  by  the  corporation  without  notice.  It  was  plausibly 
argued  that  it  might  be  considered  that  he  was  never  an  officer, 
and  that  the  usual  proceedings  against  officers  validly  elected  for 
subsequent  misconduct  need  not  be  resorted  to.  The  point,  how- 
ever, seems  to  be  still  undecided.^ 

Where  membership  depends  upon  inhabitancy,  so  that  the 
number  is  fluctuating,  as  in  the  case  of  a  municipal  corporation, 
no  particular  number  of  members  in  attendance  at  a  meeting  is 
necessary. (a) 

(2)  The  succession  of  membership  in  stock  corporations,  and 
the  election  and  removal  of  officers  differ  materially  from  the 
rules  just  discussed. 

A  stock  corporation  is  in  general  organized  for  banking,  insur- 
ance, trading,  manufacturing,  or  transportation  purposes.  It  has 
a  capital,  say  81,000,000,  divisible  into  shares  of  a  convenient 
amount,  say  8100  each.  There  being  in  the  case  supposed 
10,000  shares,  it  is  conceivable  that  each  share  should  be  owned 

1  P.agg's   Case,    11   Coke's   Rep.   93  6.  2  pg^  Lord  Wensleydale,  10  H.  L. 

The  King  u.  Lj-me  P>,egis,  1  Doug.  79,  85,  Cases,   p.   464.     "If  the  office  had  been 

and  per  Blackburn,  J.,  in  Queen  v.  Sad-  full,  he  could  not  be  removed  without  a 

dlers'  Co.,  10  H.   L.  Cases,  404,  419-420.  quo  warranto.     That  is  perfectly  clear." 

As  to  the  officer's  right  to  a  hearing,  see  ^  gee  very  extensive  discussions  of  this 

Willcocks  on  Corporations,  Part  1,  para-  matter  in  Queen  v.  Saddlers'  Co.,  10  H.  L. 

graphs  691-702.  Cas.  404. 


(r/)  The   power   of    amotion    exists   as     Piohards     V.    Clarksburg,    30    W.    Va. 
against  officers  of  municipal  corporations.     491. 


COIiPOilATIOXS.  363 

by  a  distinct  person.  Membership  depends  upon  ownership,  or 
the  apparent  ownership,  of  shares.  There  would  in  the  case 
supposed  be  10,000  members.  Tlie  other  extreme  would  be 
where  all  the  shares  are  owned  by  a  few  persons,  or  perhaps  by 
one,  making,  in  that  case,  for  the  time  being,  but  one  member. 
Membership  may  lie  anywhere  between  these  extremes.  As  the 
number  of  members  is  constantly  fluctuating  by  sale  or  other 
transfer,  it  would  be  impracticable  to  have  a  rule  requiring  a 
majority  to  attend  a  meeting.  The  regular  course  is  to  allow  the 
stock  represented,  no  matter  how  small  the  number  of  shares 
may  be,  to  control  an  election.  Absent  stockholders  may  be 
represented  by  a  delegation  of  their  voting  power  to  some  person 
or  persons  who  attend.  This  is  a  species  of  agency,  —  a  form 
of  power  of  attorney,  —  and  is  called  voting  by  "  proxy."  The 
power  to  take  votes  by  proxy  cannot  be  assumed  by  the  corpora- 
tion, but  must  be  granted  by  the  legislature,  (a)  As  a  usual 
rule,  each  share  has  a  vote,  so  that  if  a  single  person  owns  or 
controls  5,001  shares  out  of  10,000,  he  controls  the  corpora- 
tion, and  may  select  his  own  board  of  directors. 

It  is  apparent  that  the  stockholders  cannot,  as  such,  properly 
manage  the  corporate  business.  This  power  is  delegated  by  law 
to  a  governing  body,  variously  styled  trustees,  managers,  or  direc- 
tors. The  stockholders  elect  the  directors  at  a  meeting  of  their 
number.  These  hold  their  places  for  a  time  specified  by  law,  when 
a  new  election  is  regularly  held.  A  general  outline  of  the  mode 
of  proceeding  is  for  the  stockholders  to  select  inspectors  of  elec- 
tion, who  count  the  votes  as  presented.  The  inspectors  determine 
the  right  to  vote  by  an  examination  of  the  list  of  shareholders 
kept  on  the  books  of  the  corporation.  Frequently,  the  books  for 
transfer  of  stock  are  closed  for  a  number  of  days  prior  to  an  elec- 
tion. If  a  sale  of  shares  should  in  the  interim  take  place,  the 
voting  power  would  remain  in  the  former  owner,  unless  there 
were  some  statutory  restraint  upon  him,  since  he  has  the  apparent 
ownership.  In  the  same  way,  if  executors  or  trustees  are  regis- 
tered as  owners,  they  have  the  voting  power.^  (5)  The  inspectors 
do  not  look  beyond  the  transfer  book.     By  the  common  law,  one 

1  Matter  of  Barker,  6  Wend.  509  ;  Matter  of  Long  Island  R.  R.  Co.,  19  Wend.  37. 


{a)  The  right  to  vote  by  proxy  may,  a  general  statute.     See  Laws  of  1S92,  ch. 

according  to  many  authorities,  be  conferred  687,  §§  20,  21. 

by  a  by-law  where  the  statute  is  silent  on  (b)  This  is  also  true  of  a  foreign  execu- 

the  subject.     Commonwealth  v.  Detwiller,  tor,  In  re  Cape  Maj%   etc.    Nav.  Co.,  51 

131  Pa.    St.  614  ;    Morawetz  on  Corpora-  N.  J.   Law  R.  78.      If  the  stock  is  held 

tions,  §  486.     In    New  York,   voting   by  jointly  by  several  executors,  all  must  agree 

proxy  in  many  corporations  is  regulated  by  upon  the  vote.     Tunis  v.  Hestonville,  &c. 

Ry.  Co.,  149  Pa.  St.  70. 


364  THE    LAW    OF    FEIISONS. 

holding  stock  that  has  been  pledged,  or  "  hj^pothecatcd,"  to  another, 
still  has  the  right  to  vote,  since  he  is  owner,  notwithstanding  the 
})lcdge.^  (a)  The  time,  place,  and  manner  of  voting  may  be  regu- 
lated by  statute,  or,  in  the  absence  of  statutory  provision,  by  by-law.^ 

If  a  person  be  placed  in  office  by  means  of  an  election  wrongly 
conducted,  the  regular  common  law  remedy  is  a  quo  zvarranto 
proceeding.  This  can  only  be  resorted  to  when  the  party  against 
whom  it  is  instituted  is  in  office,  or,  in  legal  expression,  when  "  the 
office  is  full."  If  the  office  had  not  been  filled,  a  mandamus  could 
be  used  to  place  a  person  rightfully  elected  in  office.  In  New  York, 
by  statute,  there  is  a  summary  way  of  vacating  the  election  by 
motion.  (Jb) 

In  cases  such  as  these,  the  court  can  either  confirm  the  election 
or  order  a  new  one.  The  mere  fact  that  illegal  votes  were  cast 
will  not  be  decisive.  There  must  have  been  enough  of  that  kind 
of  votes  to  change  the  result.^  The  person  having  the  greatest 
number  of  legal  votes  will  be  declared  elected.*  If  votes  have 
been  improperly  rejected  which  would  if  received  have  changed 
the  result,  the  only  remedy  is  to  order  a  new  election.^ 

As  to  the  eJEfect  of  failing  to  hold  elections  at  the  designated 
day,  there  has  been  much  diversity  of  opinion.  On  the  one  hand 
it  has  been  claimed  that  a  direction  in  the  statute  as  to  the  time 
of  holding  the  election  is  vital,  so  that  it  cannot  be  held  at  a  later 
day.  The  better  view  seems  to  be  that  the  words  of  the  charter 
should  not  be  regarded  as  incmdatory ^  but  rather  as  a  direction  (or 
"  directory  "),  which,  if  not  followed,  may  be  carried  out  at  a  later 
day.  The  time  prescribed,  in  that  view,  is  not  of  the  essence  of 
the  direction,  (c)  At  all  events,  if  the  corporation  proceeds  to 
elect  officers  at  a  later  day,  and  they  enter  upon  their  duties, 
they  become  de  facto  officers,  and  the  corporation  will  be  bound 
by  their  acts.^ 

1  Ex  parte  Willcocks,  7  Cow.  402.  ^  Matter  of  Long  Island  E.  R.  Co.,  19 

2  Rex  V.  Spencer,  3  Burr.  1827  ;  New-     Wend.  37. 

lint?  V.  Francis,  3  Term  R.  189.  ^  Ebaugh  v.  German  Reformed  Church, 

3  fe;;arfe  Murphy,  7  Cow.  153  ;  Matter  3  E.  D.  Smith,  60;  Lovett  v.  German 
of  Chenango  Co.  Mutual  Ins.  Co.,  19  Wend.  Reformed  Church,  12  Barb.  67  ;  Partridge 
635.  V.  Badger,  25  Id.  146. 

*  Ex  parte  Desdoity,  1  Wend.  98. 


(n)  In  New  York  it  is  now  provided  by  It  is  a  general  rule  that  in  taking  action 

statute  that  the  pledgor  may  vote  the  stock  which  as  a  body  they  are  authorized  to  take, 

if  it  stands  in  his  name  on  the  books  of  the  the  stockholders  can  only  act  at  a  corporate 

corporation.  Laws  of  1892,  ch.  687,  §  20.  meeting.     Duke  v.   Markham,  105  N.  C. 

If  the  corporation  itself  owns  a  portion  131  ;  Cook  on  Stock  and  Stockholders  and 

of  the  shares,  the  right  to  vote  upon  them  Corporation  Law,  §§  625-27. 

is   suspended   until   they  are  transferred.  {b)   Laws  of  1892,  ch.  687,  §  27. 

Vail  V.  Hamilton,  85  N.  Y.  453  ;  Am.  Ry.  (c)   Beardsley  v.  Johnson,    121  N.   Y. 

Frog  Co.  V.  Haven,  101  Mass.  398.  224. 


CORPORATIONS.  365 

The  doctrine  of  disfranchisement  of  members  has  a  very  limited 
application  to  stock  corporations.  To  disfranchise  would  be  to 
forfeit  property  frequently  of  high  value.  This  power  is  but 
rarely  conceded  to  such  a  corporation,  except  so  far  as  it  is  used 
as  a  remedy  for  non-payment  of  shares  subscribed  for  or,  it  may 
be,  for  non-payment  of  assessments.  The  corporation  is  not 
obliged  to  resort  to  this  proceeding,  but  may  sue  in  the  ordinary 
way  to  collect  the  amount  of  the  subscription.  The  remedy  is 
cumulative.  It  is  also  to  a  certain  extent  alternative,  so  that 
if  the  stock  is  forfeited,  no  action  will  subsequently  lie  to  re- 
cover on  the  contract.  The  courts  are  averse  to  forfeitures, 
and  make  it  a  rule  that  there  shall  be  no  forfeiture  of  stock, 
unless  the  power  to  forfeit  is  expressly  conferred  by  the 
legislature.^ 

The  doctrine  of  amotion  as  distinguished  from  disfranchisement 
is  applied  to  directors  and  trustees  of  stock  corporations  as  well 
as  of  other  corporations,  there  being  no  forfeiture  of  stock  in- 
volved. There  are  in  State  legislation  restraining  laws  to  prevent 
these  officers  from  using  their  positions  to  the  injury  of  the  corpo- 
rations, and  from  abusing  their  trust.  They  act  in  a  fiduciary 
character,  while  the  corporation  itself  holds  its  property  in  trust 
for  the  stockholders. 

III.  Power  to  make  hy-laivs.  —  A  "  by-law"  is  a  regulation  made 
by  the  corporation  for  the  purpose  of  more  perfectly  carrying  on 
its  business,  or  performing  the  powers  granted  in  the  charter. 
The  power  to  make  by-laws  may  be  expressly  conferred,  or  im- 
plied from  the  general  authority  granted  by  the  legislature. 
When  made  by  a  municipal  corporation,  they  are  commonly 
termed  "  ordinances."  They  must  be  reasonable,  and  not  con- 
flict with  the  general  law,  nor  with  the  general  scope  of  the 
charter.^ 

Among  other  restrictions,  they  are  not  allowed  to  impose  a 
forfeiture,^  though  they  may  inflict  a  penalty  for  the  purpose  of 
enforcement ;  nor  can  they  by  by-law  grant  a  director  a  remunera- 
tion for  attending  a  directors'  meeting,  as  the  directors  cannot 
be  properly  regarded  as  servants.^  The  power  is  sometimes  dele- 
gated by  statute  to  a  select  body  to  make  the  by-laws.  This  will 
deprive  the  corporation  at  large  of  the  power,  except  as  to  such 
matters  as  are  not  named  in  the  statute.^     A  by-law  in  general 

1  Matter  of  Long  Island  Railroad  Co.,  *  Dunston  v.  Imp.  Gas  Company,  3  B. 
19  Wend.  37.  &  Ad.  125. 

2  Hoblyn  v.  The  King,  2  Bio.  P.  C.  ^  The  King  v.  Westwood,  2  Dow  & 
329.  C.  21. 

3  Kirk  V.  Nowill,  1  Term  R.  118. 


366  THE    LAW    OF    PERSONS. 

restraint  of  trade  is  void,  (a)  This  remark  does  not  apply  to  a 
mere  regulation  of  trade,  such  as  that  no  person  shall  slaughter 
animals  within  the  walls  of  a  city.^  {h)  This  rule  is  modified  in 
England  by  the  effect  given  to  a  custom,  particularly  in  cities,  e.  g.^ 
in  London,  whereby  trade  may  be  validly  restrained. 

The  court  construes  with  strictness  the  power  to  make  by-laws, 
particularly  where  they  are  enforced  by  a  penalty.  The  rule  of 
construction  may  be  illustrated  by  examples.  A  power  to  make 
by-laws  to  remove  "  dust,  ashes,  rubbish,  soil,"  &c.,  from  a  street, 
docs  not  include  a  bj^-law  directing  the  removal  of  snow.^  (c)  The 
same  general  principle  is  adopted  in  construing  the  by-law  itself. 
Thus,  a  by-law  declaring  one  who  made  a  temporary  obstruction 
in  the  streets  of  a  village  punishable  by  fine,  was  determined  not 
to  be  violated  by  one  who  erected  a  substantial  addition  to  his 
house,  which  encroached  upon  the  footway.^  On  a  similar  prin- 
ciple, where  a  railway  company  had  power  to  make  a  by-law 
enforceable  by  a  "penalty  or  forfeiture,"  it  was  decided  that  a  by- 
law which  required  a  passenger  to  obtain  a  ticket  in  advance,  and 
to  exhibit  his  ticket,  and  deliver  it  when  required  by  the  company, 
or  else  pay  the  fare  from  the  place  where  he  originally  started, 
was  void,  because  this  double  payment  could  not  be  regarded  as  a 
"  penalty  or  forfeiture."  *  A  by-law  may  be  partly  valid  though 
partly  void,  if  the  void  part  is  distinct  and  separable  from  that 
which,  standing  by  itself,  is  valid.^ 

A  by-law  is  in  its  nature  legislative  rather  than  administrative. 
This  proposition  is  illustrated  by  a  city  ordinance.  If  a  city  make 
a  by-law  prohibiting  an  act,  and  still  the  act  be  done  by  a  stranger, 
and  a  person  is  injured,  he  will  have  no  action  against  the  city. 
This  rule  has  even  been  carried  so  far  as  to  relieve  the  city  from 
responsibility  for  the  misfeasance  of  its  own  officers  or  agents  in 
carrying  out  the  ordinance.  It  is  assumed  to  be  exercising  a 
kind  of  quasi  sovereignty  in  such  a  case.^  (t^)      This  rule  has  been 

1  Pierce  v.  Bartrum,  Cowper,  269.  ^  Queen  v.  Dickenson,  7  E.  &  B.  831. 

2  The  Queen  v.  Wood,  5  E.  &  B.  49.  *  Chilton  v.  London  &  C.  Ry.  Co.,  16 
See  also  Jennings  v.  Great  Northern  Ry.     M.  &  W.  212. 

Co.,  L.  R.  1  Q.  B.  7;  Dearden  v.  Towns-  6  R^g.  „.  Lundie,  8  Jur.  N.  s.  640. 

end,  Id.  10.  ®  Ogg  v.  City  of  Lansing,  35  la.  495. 


(a)  So  also  an  ordinance  which  tends  (h)  Cronin  v.    People  of  the  State  ot 

to  create  a  monopoly  is  invalid,  unless  the  N.  Y.,  82  N.  Y.  318  ;  cf.  Chaddock  v.  Day, 

municipality  has  received  an  express  grant  75  Mich.  527. 

of  power  from  the  legislature  to  confer  such  (c)  Cf.  Village  of  Carthage  v.  Frederick, 

a  privilege.     City  of  Chicago  v.  Rumpff,  122  N.  Y.  268. 

45  111.  90  ;  Gale  v.  Village  of  Kalamazoo,  {d)  Kies  v.  Erie  City,  135   Pa.  St.  144  ; 

23  Mich.  344  ;  City  of  Brenham  v,  Bren-  Wright  v.   City  Council  of  Augusta,    78 

ham  Water  Co.,  67  Tex.  542.  Ga.  241.     See  also  Maximilian  v.  Mayor, 


CORPORATIONS.  367 

applied  to  officers  executing  sanitary  regulations,^  and  to  the  acts 
of  a  fire  department,  etc.2  The  principle  cannot  be  properly  ex- 
tended to  cases  where  a  city  or  other  municipality  is  under  a 
duty  to  do  an  act  for  the  protection  of  individuals,  sudi  as  to  keep 
the  streets  in  repair,  in  which  case  it  will  be  liable  as  well  for 
the  negligence  of  contractors  as  of  servants.^  (a) 

IV.  Power  to  make  contracts.  —  A  corporation  has  power  to 
make  such  contracts  as  are  either  expressly  allowed  in  its  char- 
ter or  fairly  to  be  implied  from  the  language  used.  Unless 
there  be  some  statutory  provision  to  the  contrary,  the  directors 
or  trustees  make  the  contract,  without  being  bound  to  ask  the 
consent  of  the  stockholders.*  Where  an  inquiry  arises  as  to  any 
authority,  a  preliminary  question,  as  already  shown,  may  be  con- 
sidered, as  to  its  bciug  ultra  vires. 

Leaving  this  out  of  view,  the  most  important  point  will  be  as  to 
the  matter  of  implied  powers.  It  is  a  general  rule  that  any  im- 
plied authority  will  be  conceded  whicli  is  reasonably  necessary 
and  proper  for  the  exercise  of  the  powers  expressly  granted. 
Thus,  a  corporation  having  power  to  do  a  particular  business  may 
without  any  express  authority  borrow  money  and  give  its  note.^ 

A  serious  difficulty  existed  in  the  common  law  as  interpreted 
in  England  as  to  the  use  of  a  seal.  The  conclusion  of  the  courts 
was  that  a  seal  was  absolutely  necessary,  with  some  slight  and 
unimportant  exceptions.  The  cases  are  very  numerous  in  which 
the  distinctions  were  drawn,  and  the  rules  highly  inconvenient  in 
practice.  The  American  courts  have  reached  more  rational  con- 
clusions. The  necessity  of  a  seal  here  has  been  made  to  depend 
on  the  nature  of  the  contract.,  and  not  upon  the  person  who  makes 
it,  so  that  where  an  individual  must  use  a  seal,  a  corporation  must, 
but  need  not  otherwise.^  Thus,  where  a  natural  person  makes  a 
deed,  he  must  use  a  seal  ;  so  must  a  corporation.  Where,  on  the 
other  hand,  an  individual  makes  a  promissory  note,  a  seal  is 
omitted ;  so  it  may  be  in  the  case  of  a  corporation.  A  seal  on  a 
corporate  obligation,  where  it  is  unnecessary,  does  no  harm.  The 
law,  by  this  theory,  is  greatly  simplified,  and  the  complexity  of 

^  Ogg  V.  City  of  Lansing,  supra.  5  Curtis  v.  Lpavitt,  15  N.  Y.  9. 

2  Heller  v.  Ma3'or,  &c.  of  Sedalia,  53  ^  This  rub  has  been  adopted  by  statute 
Mo.  159  ;  Hayes  v.  Oshkosh,  33  Wis.  314.  in  England  as  to  trading  companies.     See 

3  Storrs  V.  City  of  Utica,  17  N.  Y.  104 ;  8  &  9  Vict.  c.  16,  §  97,  continued  in  30  & 
Allentown  v.  Kramer,  73  Pa.  St.  406.  31  Vict.  c.  131,  §  37.     As  to  gas  companies, 

*  Beveridge  v.  New  York  Elevated  R.R.     see  23  &  24  Vict.  c.  125,  §  20. 
Co.,  112  N.  Y.  1.  

62  N.  Y.  160  ;   Jolly's  Adm'x  v.  City  of         (a)  Pettengill  v.  City  of  Yonkcrs,  116 
Hawesville,  89  Ky.  279  ;  Dillon  on  Muni-     N.  Y.  558. 
cipal  Corporations,  (4th  ed.)  §  974,  et  scq. 


308  THE   LAW   OF   PERSOXS. 

having  one  rule  for  natural  persons  and  another  for  corporations 
as  to  tlie  same  subject-matter  is  avoided,  (a) 

As  a  corporation  has  no  physical,  but  merely  an  ideal  existence, 
it  must  necessarily  make  contracts  through  agents.  The  general 
principles  of  the  law  of  agency  become  applicable  to  it.  A  letter 
written  by  a  cashier  of  a  bank  upon  its  business  is  deemed 
to  be  a  letter  from  the  bank  itself.^ 

A  difficulty  has  arisen  in  the  case  of  directors  of  a  corporation, 
as  to  whether  notice  to  one  of  the  board  not  at  the  time  attending 
a  meeting  is  a  notice  to  the  corporation  itself.  It  is  not  doubted 
that  notice  to  the  board  while  in  session  is  notice  to  the  corpora- 
tion ;  but  notice  to  an  individual  member  is  not  notice  to  the 
corporation,  unless  he  was  in  fact  an  agent  for  the  corporation, 
such  as  the  cashier  of  a  bank.^ 

Qualified  power  to  make  contracts  may  be  conferred  by  the 
charter,  —  as,  for  example,  to  execute  a  mortgage  upon  land  with 
the  assent  of  a  specified  number  of  the  members.  In  such  a  case 
the  restrictions  of  the  statute  must  be  observed,  otherwise  the 
act  will  be  ultra  vires,  and  void. 

V.  Capacity  to  commit  a  tort.  —  It  is,  after  much  controversy,  a 
settled  rule  of  law  that  a  corporation  may  commit  a  wrong  for 
which  it  may  be  made  to  respond  in  damages  in  the  same  manner 
as  an  individual  may  be.  Any  different  rule  would  work  mani- 
fest injustice,  as  persons  carrying  on  business  might  become  incor- 
porated to  evade  responsibility  for  wrongful  and  injurious  acts. 
No  sufficient  reason  could  possibly  be  given  why  partners  conduct- 
ing a  newspaper  should  be  responsible  for  a  malicious  libel,  while 
a  corporation  conducting  the  same  business  should  not  be.  Ac- 
cordingly, a  corporation  may  be  held  liable  for  an  assault,^ 
nuisance,  trespass,  libel,*  fraud,^  false  imprisonment,^  and  con- 
version of  property.'^ 

There  has  been  more  difficulty  in  the  judicial  mind  with  the  case 
of  malicious  prosecution  than  with  the  other  cases.     Those  who 

1  New  Hope  Bridge  Co.  v.  Phoenix  ^  Whitfield  v.  So.  East.  E'way  Co., 
Bank,  3  F.  Y.  1.^6.  E.  B.  &  E.  15. 

2  The  Fulton  Bank  v.  The  New  York  &  s  Ranger  v.  Great  Western  R'way  Co., 
Sharon  Canal  Co.,  4  Paige,  127  ;  National  5  H.  L.  Cases,  72. 

Bank  v.   Norton,  1   Hill,  572  ;  Bank  of         ^  Moore    v.    Metropolitan   R'waj'^   Co., 

IT.  S.  V.  Davis,  2  Id.  451.  L.  R.  8  Q.  B.  36. 

3  Eastern  Co.'s  Railway  Co.  v.  Broom,  '  Giles  v.  Taff  Vale  R'way  Co.,  2  E.  & 
6  Exch.  314.  B.  822. 


{n)   A  late  statute  in  New  York  pro-  by  the  proper  officers  of  the  corporation 

vides  that  an  instrument  duly  executed  in  under  their  private  seals,  shall  be  deemed 

the  corporate  name  of  a  corporation,  which  to  have  been  executed  under  the  corporate 

shall  not  have  adopted  a  corporate  seal,  seal.     Laws  of  1892,  oh.  677,  §  13. 


CORPORATIONS.  369 

have  doubted  the  capacity  of  a  corporation  to  commit  such  an  act, 
have  argued  that  a  corporation  aggregate  is  incapable  of  malice 
or  motive.  The  correct  course,  however,  seems  to  be  to  pay 
attention  to  the  nature  of  the  act  done,  which,  if  without  excuse 
is  deemed  to  be  malicious.  Thus,  in  the  case  of  an  individual,  if 
there  be  no  probable  cause  for  the  prosecution,  an  action  for 
malicious  prosecution  may  be  brought  against  the  prosecutor,  the 
malice  being  inferred.  The  same  principle  may  fairly  be  api)lied 
to  a  corporation  acting  without  any  probable  cause,  (a)  Malice 
is  a  mere  legal  fiction  in  such  a  case.  There  would  be  much 
more  difficulty  in  a  case  where  actual  malicious  intent  was  a 
necessary  ingredient. ^ 

VI.  Capacity  to  acquire  lands  and  other  property  and  to  dis- 
pose of  the  same.  —  Assuming  that  there  are  no  restraining  words 
in  the  constituting  law  (or  charter),  a  corporation  may,  for  all 
purposes  incident  to  its  business,  acquire  by  its  own  act  personal 
property  as  freely  as  an  individual.  It  may  also  take  personal 
property  by  will.^  There  are  statutes  in  a  number  of  the  States 
of  a  restraining  nature  as  to  bequests.  Those  in  Xew  York,  beino- 
applicable  to  real  estate,  are  considered  below.-^  The  particular 
charter  or  law  under  which  the  corporation  is  organized  should 
also  be  examined. 

The  power  of  a  corporation  to  acquire  and  dispose  of  real  prop- 
erty will  be  considered  under  the  following  heads  :  (1)  The  power 
of  a  corporation  to  take  land  by  conveyance  or  to  acquire  it  in  any 
other  manner  except  by  will  ;  (2)  the  power  of  acquisition  by 
will  or  devise  ;  (3)  the  right  of  disposal. 

(1)  A  corporation  may,  at  the  common  law,  in  the  absence  of 
any  statutory  restriction,  acquire  land,  as  it  may  personal  prop- 
erty, so  far  as  it  may  be  necessary  to  carry  into  effect  the  powers 
conceded  to  it.  The  capacity  to  acquire  land,  in  other  words, 
may  be  treated  as  incidental  to  the  powers  expressly  granted.^ 

1  This  question  was  considered  in  the  decision  of  the  question  was  not  necessary 

House  of  Lords  by  Lord   Bramwell  in  to   the   disposition   of   the   case,   though 

Al)rath  v.  North  Eastern  R'way  Co.,  L.  R.  they  treated  it  as  a  grave  question. 
11    App.  Cases,  247.     His  reasoning  was  2  Sherwood    v.    Am.    Bible  Society,   1 

opposed  to  the  view  that  an  action  of  ma-  Keyes,    561;    s.   c.    4    Abb.    App.    Dec. 

lieious    prosecution    would   lie   against   a  227. 

corporation,  since  proof  of  adual  ill  will  3  j^^^yg  of  i848,  ch.  319  ;  Laws  of  1860, 

was  a  necessary   ingredient   in    the  case.  ch.  360. 

What  he  said  in  very  distinct  words  was  *  M'Cartee  v.  Orplians  Asylum  Soc,  9 

not  taken  up  by  the  other  judges,  as  the  Cow.  437. 

(a)  Reed  v.  Home  Savings  Bank,  130  Springfield  Engine  &  Threshing  Co.  v. 
Mass.  443  ;  Jordan  v.  Ala.  Great  Southern  Green,  25  111.  App.  106  ;  Carter  i'.  Howe 
Ry.  Co.,  74  Ala.  85  ;  Boogher  v.  The  Life  Machine  Co.,  51  Md.  290  ;  Williams  v. 
Association    of    America,    75    ilo.    319  ;     Planters'  Insurance  Co.,  57  Miss.  759. 

24 


3';o  THE  LAW  of  persons. 

Tlicre  were  enacted  at  an  early  day  in  England  restraining 
statutes,  termed  statutes  of  "  mortmain,"  which  restrained  the 
acquisition  of  land  in  any  case,  unless  by  special  license  from  the 
king.  The  ol)ject  of  these  statutes  was  to  more  effectually  work 
uut°a  rule  of  the  feudal  system.  By  feudal  law,  if  an  owner  of 
land  died,  the  heir  could  not  take  possession  of  the  land  without 
paying  a  sum  of  money  to  the  king,  called  a  "  relief."  This  be- 
came an  acknowledged  source  of  royal  revenue.  It  could  not  be 
applied  to  corporations,  as  they  were  then,  in  the  eye  of  the  law, 
immortal.  As  a  practical  equivalent,  corporations  were  required 
by  this  legislation  to  obtain  a  royal  license  before  they  could 
safely  acquire  land,  and  the  king  on  granting  it  could  exact  a 
sum  of  money  equivalent,  in  his  view,  to  the  "relief"  which 
would  have  been  likely  to  accrue  to  him  in  case  the  land  had 
been  owned  by  a  natural  person.  It  is  a  mistake  to  suppose 
that  tlie  mortmain  acts  were  exclusively  grounded  in  a  jealousy 
of  the  Christian  church,  or  even  primarily.  They  were  aimed  at 
all  corporations,  whether  religious  or  secular,  for  the  special 
reason  already  stated. 

The  mortmain  acts  have  not  been  generally  re-enacted  in  the 
States  of  this  country.  The  special  reason  which  led  to  them  in 
England  does  not,  as  a  matter  of  course,  exist  here.  As  far  as 
there  are  restrictions  upon  the  acquisition  of  land,  they  rest  upon 
a  different  ground,  perhaps  upon  a  well-grounded  apprehension 
that  they  may  become  formidable  to  the  State.  There  is,  how- 
ever, general  restrictive  legislation  in  the  State  of  Pennsylvania. 
The  more  usual  practice  is  to  allow  the  acquisition  of  land,  but 
to  limit  the  amount  in  value  or,  it  may  be,  in  extent.  If  the 
amount  in  value  be  exceeded,  the  conveyance  is  not  void,  so  that 
the  grantor  can  reclaim  the  land.  The  question  of  transgression 
of  the  law  can  only  be  raised  by  the  State  in  an  appropriate  pro- 
cccding.i  The  value  referred  to  in  the  constituting  law  is  that 
existing  at  the  time  of  the  acquisition  of  the  land.  If  the  value 
increases  even  enormously,  there  is  no  violation  of  the  statute.^ 

Foreign  as  well  as  domestic  corporations,  if  not  restrained, 
may  acquire  land.  A  corporation,  being  a  person,  may  act  beyond 
the  limits  of  the  State  creating  it. 

A  corporation  may  acquire  land  incidentally,  as  where,  being 
authorized  to  loan  money,  and  the  loan  being  secured  by  mort- 
gage upon  land,  the  mortgage   is   foreclosed.      The  corporation 

1  In  New  York  it  is  an  action  by  the  ^  Bogardus  v.  Trinity  Church,  4  Saudf. 

Attorney-General.     If  he  does  not  cause     Ch.  633. 
the  land  to  be  forfeited  the  title  remains  iu 
the  corporation. 


CORPORATIONS.  371 

may  then  become  proprietor  through  the  foreclosure.  It  is  some- 
times required  by  law  that  the  land  be  sold  by  the  corporation 
within  a  fixed  time  after  its  acquisition.  On  this  point  the 
charter  or  constituting  statute  should  be  consulted. 

Again,  the  corporation  may  acquire  land  by  aggressive  acts 
of  wrong,  acquiesced  in  by  owners  for  the  time  prescribed  by  law. 
Such  an  act  is  technically  termed  "  disseisin."  In  the  same  man- 
ner a  right  to  make  use  of  another's  land,  such  as  a  right  of  way, 
may  be  acquired  by  prescription. 

(2)  The  right  to  take  land  by  will,  or,  stated  in  another  form, 
the  right  to  "  devise "  land,  did  not  exist  in  the  common  law, 
except  in  certain  localities  by  custom.  To  remedy  this  defect  in 
the  law,  a  statute  was  passed  in  the  reign  of  Henry  VIII.,  known 
as  the  Statute  of  Wills,^  gi'^'hig  the  general  power  to  devise  land, 
but  omitting  corporations  from  the  class  of  "  devisees,"  or  per- 
sons wlio  could  take  land  by  will.  It  thus  is  a  rule  that,  as  a 
general  principle,  a  corporation  cannot  take  land  by  will.  The 
rule,  however,  must  be  stated  with  some  qualifications  and 
exceptions. 

The  first  qualification  to  the  rule  is,  that  while  a  corporation 
cannot  take  directly  by  will,  it  may,  in  some  cases,  where  there  is 
no  proJiihitory  legislation,  become  a  beneficiary  under  a  trust. 
It  was  a  rule  of  law  long  before  the  Statute  of  Wills,  that  a  per- 
son might  take  a  trust  interest  in  land  by  -will,  though  he  could 
not  take  a  legal  estate  in  the  land  itself  by  that  means.  For 
example,  an  owner  of  land  might,  by  common  law,  convey  it  to 
another  to  hold  in  trust  for  himself,  and  then,  being  no  longer 
strict  owner  of  the  land,  but  rather  being  owner  of  a  trust  estate, 
he  could  devise  that,  and  the  devisee  would  ])e  an  assignee  of  such 
trust  estate.  The  only  point  of  difficulty  is  whether  this  rule 
could  be  applied  to  a  corporation.  There  is  no  jjrohibition  in  the 
English  Statute  of  Wills,  (34  &  35  Henry  VIII.,  c.  5,)  acting  upon 
corporations.  At  most,  there  is  but  an  exception,  which  may  fairly 
be  claimed  not  to  change  the  common  law.  The  point  then  is, 
under  what  circumstances  can  a  corporation  take  a  trust  estate 
by  will  ? 

The  answer  to  this  inquiry  is  found  in  the  law  of  charitable 
trusts.  The  Court  of  Chancery,  from  an  early  day,  has  enforced 
charitable  trusts  in  land  created  by  will,  whether  the  land  was 
held  for  corporations,  or  by  individual  trustees  for  specified 
purposes.  It  is  not  proposed  to  develop  the  law  of  charitable 
trusts  in  this  place,  but  only  to  point  out  how  a  corporation  may 
become  a  devisee.     The  law  of  charities  is  a  branch  of  equity 

1  32  Hen.  VIII.,  c.  1  ;  and  34  &  35  Id.  c  5,  to  be  construed  together. 


372  THE   LAW    OF    PERSONS. 

iurisprudence,  and  is  found  in  equity  reports  and  treatises.  Other 
corporations  (not  charitable)  cannot  be  devisees,  and  a  devise  in 
o-cneral  to  such  a  corporation  is  void.  If  the  corporation  is 
made  a  trustee  by  a  will,  it  may  be  that  while  the  devise  is  void, 
the  trust  will  be  valid.  In  such  a  case,  the  court  will  appoint 
a  trustee  in  place  of  the  disabled  corporation.^ 

The  following  provisions  in  the  New  York  statutes  relating  to 
devises  to  corporations  may  be  referred  to :  — 

1.  The  general  words  of  the  statute  law  are  :  "  iVb  devise  to  a 
corporation  shall  be  valid  unless  such  corporation  be  expressly 
authorized  by  its  charter,  or  by  statute,  to  take  by  devise."  ^  This, 
it  will  be  seen,  is  a  prohibitory  clause,  and  quite  different  in  its 
effect  from  the  mere  exception  in  the  English  Statute  of  Wills. 
There  seems  to  be  no  room  for  a  charitable  corporation  to  take 
land,  except  by  express  provisions  of  law. 

2.  Certain  charitable  corporations  are  expressly  authorized  by 
law  to  take  land  by  w^ill  in  trust.  These  are  trusts  to  literary 
incorporated  institutions,  including  incorporated  colleges,  for  the 
following  purposes  :  to  estal)lish  and  maintain  an  observatory  or 
observatories,  to  found  and  maintain  professorships  and  scholar- 
ships, to  provide  and  keep  in  repair  a  place  for  the  burial  of  the 
dead,  or  for  any  other  specific  purposes  comprehended  in  their 
respective  charters.  Cities  and  villages  are  also  allowed  to  take 
property  in  trust  for  specified  purposes,  and  also  the  trustees  of 
common  schools.  Such  trusts  may  be  created  by  grant  or  will 
in  both  real  and  personal  estate.^ 

3.  There  are  several  important  general  statutes  prescribing 
formulse  for  the  organization  of  classes  of  charitable  corporations, 
enabling  corporations  so  organized  to  take  land  by  will  under 
specified  terms.  A  leading  one  of  this  class  is  the  "  Act  for  the 
incorporation  of  benevolent,  charitable,  scientific,  and  missionary 
societies."  *  The  same  general  principle  is  found  in  the  act  for 
founding  rural  cemetery  associations,^  and  in  the  act  for  estab- 
lishing private  and  family  cemeteries.^  In  this  last  case,  trustees 
are  selected  by  the  testator,  and  become  incorporated  in  a  mode 
prescribed  by  the  act.  "  Library  companies  "  have  power  to  take 
in  the  same  way,'''  also  clubs  for  social  and  recreative  purposes ;  ^ 

1  Sonley  v.  Clockmakers'  Co.,  1  Bro.  5  Laws  of  1847,  ch.  133. 

Q   Q  SI,  ®  Laws  of  1854,  ch.  112;  amended  by 

2  2  R,  S.  57,  §  3.  Laws  of  1871,  ch.  68. 

3  Laws  of  1840,  ch.  318,   also  Laws  of  '  Laws  of  1853,  ch.  395. 

1841,  ch.  261.  ^  Laws  of  1865,  ch.  368  ;  Laws  of  1875, 

4  Laws  of  1848,  ch.  319,  and  amenda-     ch.  267. 
tory  acts.     See  Rev.  Stats,  vol.  iv.  p.  1922, 

et  seq.  (8th  ed.). 


co::roRATioxs.  373 

societies  for  the  i)rcveiition  of  cruelty  to  children,i  also  religious 
societics.2     This  is  but  a  partial  enumeration,  (a) 

4.  There  is  also  inserted  in  various  special  acts  of  incorpo- 
ration of  particular  societies  the  right  to  take  by  devise.  These 
are  very  numerous,  and  cannot,  with  profit,  be  particularized. 
In  most  of  these  cases  there  is  a  limitation  upon  the  amount  or 
value  of  the  land  to  be  taken,  or  perhaps  a  requirement  that  the 
land  be  sold  within  a  brief  period  after  acquisition. 

A  practical  suggestion  of  value  may  here  be  made.  It  is  fre- 
quently the  case  that  a  will  must  be  drawn  without  an  opportunity 
to  examine  the  specific  provisions  of  the  laws  constituting  the 
corporation.  It  is  for  this  reason  wise,  under  such  circumstances, 
whenever  there  is  doubt,  to  insert  a  clause  in  the  will  directing 
the  real  estate  to  be  treated  as  personal  property.  In  this  case, 
in  the  view  of  the  law,  it  becomes  personal  estate  under  the  doc- 
trine of  equitable  conversion,  and  the  provision  may  sometimes 
be  valid  in  that  aspect,  when  it  would  be  void  as  applicable  to  real 
estate.  Where  tlie  circumstances  of  the  case  admit  of  it,  the 
charter  should  always  be  consulted. 

5.  The  rule  laid  down  in  the  New  York  statutes  that  a  cor- 
poration cannot  take  land  by  devise  without  express  authority, 
applies  to  foreign  as  well  as  domestic  corporations,  if  the  land  be 
situated  in  New  York.  Still,  if  the  foreign  law  permits  such  a 
corporation  to  take  land  by  devise,  this  is  a  sufficient  compliance 
with  the  New  York  statute.  Again,  if  the  foreign  law  does  not 
permit  the  corporation  to  take  land  by  will,  but  does  permit  it  to 
take  personal  property  in  that  way,  a  direction  in  the  will  to  sell 
the  land  and  convert  it  into  money  will  be  carried  into  effect  by 
the  New  York  courts. 

6.  Reference  must  here  be  made  to  certain  restrictions  upon  the 
power  to  devise  land  to  corporations,  of  which  there  are  two  forms  : 
one,  of  a  broad  and  general  nature,  made  with  the  view  that  the 
just  and  reasonable  expectations  of  near  relatives  shall  not  be 
overlooked  in  devising  or  bequeathing  property  to  charitable  insti- 
tutions, and  including  personal  as  well  as  real  estate ;  the  other, 
more  precise  and  narrow,  confined  to  particular  corporations,  and 
prescribing  an  interval  of  time  between  the  execution  of  the  will 
and  the  testator's  death. 

1  Laws  of  1875,  ch.  130.  2  Laws  of  1813,  ch.  60. 


(a)  These  statutes  have  been  changed  (Ch.  563  of  the  Laws  of  1890,  as  amended 

and  added  to  by  later  enactments,  which,  by  ch.   687,  of  the  Laws  of  1892)  should 

however,  it  is  impracticable  to  refer  to  in  be  consulted.     An  important  act  also  is 

detail.     In  addition  to  amendments  relat-  ch.   701  of  the  Laws  of  1893,  respecting 

ing  to  the  particular  laws  mentioned  in  gifts  for   charitable  purposes.      See  post, 

the   text,   the    General    Corporation    Law  p.  636. 


374  THE    LAW    OF    PERSONS. 

The  leading  statute  of  the  first  class  is  ch.  360  of  the  Laws 
of  1860:  "No  person  having  a  husband,  wife,  child,  or  parent 
shall  by  his  or  her  last  will  and  testament  devise  or  bequeath  to 
any  benevolent,  charitable,  literary,  scientific,  religious,  or  mis- 
sionary society,  association  or  corporation,  in  trust  or  otherwise, 
more  than  one-half  part  of  his  or  her  estate  after  the  payment  of 
his  or  her  debts  (and  such  devise  or  bequest  shall  be  valid  to  the 
extent  of  one  half,  and  no  more)." 

In  determining  the  amount  of  one  half,  the  widow's  dower  and 
the  debts  are  to  be  first  deducted.  If  the  testator  divides  his 
estate  among  several  corporations,  etc.,  they  cannot  in  the  aggre- 
gate take  more  than  one  half.^  This  law  does  not  repeal  other 
restrictions  upon  the  capacity  to  take  by  devise,  but  is  in  its  nature 
cumulative. 

The  other  case  of  inability  to,  take  by  devise  is  created  by  a 
statute  of  1848  (ch.  319,  §  6),  which  is  applicable  to  "benevolent, 
charitable,  scientific,  and  missionary  societies."  This  law  provides 
that  no  person  leaving  a  wife  or  child  or  parent  shall  leave  to  an 
institution  organized  under  that  act  more  than  07ie  fourth  oi  his  or 
her  estate,  and  tiiat  no  such  devise  or  bequest  shall  be  valid  in 
any  will  which  shall  not  have  been  made  and  executed  at  least  two 
months  before  the  testator's  death. 

It  will  be  observed  that  a  strong  distinction  is  made  in  this 
law  between  wills  so  far  as  they  contain  provisions  in  favor  of 
specified  charitable,  etc.,  societies,  and  those  that  do  not.  In 
the  one  case,  the  will,  so  far  as  it  contains  the  charitable  pro- 
visions, must  have  been  executed  at  least  two  months  before 
death,  while  in  other  respects  the  will  may  be  made  at  any 
time  before  death.  This  provision  is  apparently  conceived  in  a 
spirit  of  apprehension  that  undue  influence  may  be  exercised 
upon  testators  towards  the  close  of  life  to  induce  them  to  make 
testamentary  provisions  in  favor  of  charitable  institutions.  It  is 
taken  in  substance  from  an  English  statute,  enacted  in  the  reign 
of  George  11.^ 

In  a  large  number  of  instances  since  the  statute  of  1848,  special 
charters  have  been  granted  to  charitable  institutions  by  the  legis- 
lature "  subject  to  all  the  provisions  of  law  relating  to  devises  and 
bequests  by  last  will  and  testament."  It  has  been  held  that  this 
clause  subjects  the  charter  to  the  rules  of  the  law  of  1848,  and 
that  such  a  society  can  take  nothing  by  a  will  which  is  not  executed 

1  Chamberlain  v.  Chamberlain,  43  condemned  in  most  vigorous  terms  in  2 
N.  Y.   424.  Palgrave's  History  of  Normandy  and  Eng- 

2  9  Geo.  II.  c.  36.     This  statute  prin-  land,  263. 
cipally  affects  real   estate.     Its   spirit  is 


CORPORATIONS.  375 

at.  least  two  months  before  the  testators  death. ^  (a)  The  restric- 
tion applies,  even  though  the  testator  leave  no  wife,  child,  or  parent,- 
Foreign  corporations  are  not  aftected  by  this  jn'ovision,  it  being 
in  fact  not  applicable  to  all  domestic  corporations,  but  only  to  a 
certain  specitied  class.^ 

When  a  corporation  has  no  capacity  to  take  land  by  devise,  the 
gift  to  it  will  be  void.  The  same  rule  applies  in  New  York,  if  its 
capacity  is  exceeded.  The  case  dues  not  resemljle  that  arising 
under  the  statutes  of  mortmain  in  a  conveyance  where  the  corpo- 
ration is  owner,  except  as  against  the  State  proceeding  judicially 
for  a  forfeiture.^  This  doctrine  assumed  great  importance  in 
the  case  of  a  large  bequest  and  devise  to  Cornell  University. 
The  contestants  of  the  will  having  shown  that  the  property  of  the 
University  already  equalled  the  limit  provided  in  the  charter,  the 
gift  was  declared  to  be  void.^ 

(3)  As  a  general  rule,  a  corporation  has  power  to  convey  such 
property  as  it  may  own.  Such  a  power  is  an  incident  to  owner- 
ship. It  w^ill  have  the  power  to  convey,  though  it  be  chartered 
only  for  a  term  of  years,  at  the  end  of  which  its  capacity  to  hold 
land  will  cease.  A  conveyance  of  the  entire  interest  in  the  land 
will  be  valid,  if  made  during  its  existence.  It  is  said  to  have  the 
perfect  ownership  of  the  land  for  the  purpose  of  a  conveyance, 
though  it  has  a  defeasible  interest  for  the  purpose  of  enjoyment.^ 

It  is  in  special  instances  restricted  from  conveying  on  two 
general  grounds  :  one  by  a  rule  of  the  law  of  trusts,  the  other  by 
the  terms  of  some  statute.  A  corporation  as  well  as  a  private 
person  holding  land  for  a  specific  purpose  of  a  charitable  natui'C  is 
as  a  rule  disabled  from  conveying  the  land  free  from  the  trust, 

^   Kerr  v.  Dougherty,   79  N.   Y.   327  ;  main  acts  in  England  have  the  same  effect 

Letevie  v.  Lefevre,  59  N.  Y.  434  ;  Stephen-  here  as  in  the  common   law,  in  allowing 

sun  V.  Short,  92  N.  Y.  433.  the  corporation  to  take  the  property  and 

^  Stejihenson  r.  Short,  supra.  The  case  hold  it  by  a  defeasible  title  until  proceed- 
of  Jones  V.  Habersham,  107  U.  S.  174,  177,  ings  are  instituted  by  the  sovereign  power 
is  not  opposed  to  this  view,  the  language  for  a  forfeiture.  His  remarks  are  adverse 
of  the  statute  in  that  case  not  being  the  to  that  view;  still,  nothing  was  really  Se- 
same, cided,   except  that,    under   the  legislation 

3  Hollis    r.    Drew   Theol.    Sem'y,    95  regaiding  wills,  if  the  amount  of  property 

N.  Y.  166.  bestowed  exceed  the  limitations  of  law,  the 

*  Chamberlain     v.     Chamberlain,     43  excess  is  void,  so  that  any  one  who  would 

N.  Y.  424,  439.  have  been  interested  in  the  property,  had 

5  Matter  of  McGraw,   111   N.  Y.   m.  there  been  no  will,  can  raise  the  point  of 

There  is  in  the  opinion  of  Peckham,  J.,  invalidity. 

in  the  Court  of  Appeals,  an  elaborate  dis-         .^  Nicoll  v.  N.  Y.  &  Erie  R.  E.  Co.,  12 

cussion  of  the  point  whether  the  provisions  N.  Y.  121. 
of  acts  in  this  country  resembling  mort- 


(a)  In  the  matter  of  Kavanagh,  125  N.  Y.  418. 


376  THE    LAW    OF    PERSONS. 

except  to  one  who  purchased  for  a  vahiable  consideration  and 
without  jiotice  of  the  trust.  It  is  a  general  rule  of  law  that  trus- 
tees of  charities  should  never  alienate  the  trust  estate  without  the 
sanction  of  the  court.^  Application  may  be  made  to  the  court  by 
the  attorney -general  who  is  assumed  to  represent  the  public  in- 
terest in  the  case.^  There  are  decisions  holding  that  this  doctrine 
does  not  in  principle  apply  where  the  property  is  not  given  07i  a 
specific  trust.  It  is  then  held  for  the  general  purposes  of  the  cor- 
poration, and  may  be  conveyed,  or  its  form  be  changed.  In  otlier 
words,  the  property  is  held  in  a  fiduciary  character,  though  the 
specific  form  of  ownership,  whether  personal  or  real,  may  from 
time  to  time  be  changed,  as  long  as  there  is  nothing  in  the  charter 
to  forbid  it.^ 

Instances  of  statutes  forbidding  alienation  of  land  by  religious 
corjjorations  are  certain  acts  passed  in  the  reign  of  Queen  Eliza- 
beth. These  are  cited  in  the  commentaries  of  Blackstone.*  It  is 
assumed  by  the  New  York  courts  that  these  statutes  were  adopted 
by  the  colonists  of  New  York  as  a  part  of  their  common  law,  and 
have  become  a  part  of  the  existing  common  law  of  the  State,  so 
far  as  they  have  not  been  changed  by  legislation  since  the  organi- 
zation of  the  State.^  Under  this  theory  religious  corporations 
must  now  apply  to  the  legislature  for  the  requisite  authority  to 
sell  their  land  in  any  case  where  the  purchase  money  does  not 
inure  to  the  benefit  of  the  corporation.  In  the  case  where  the 
corporation  is  to  receive  the  benefit,  a  change  in  the  general  law 
permits  the  land  to  be  sold  under  direction  of  the  Supreme  Court 
of  the  district  or  the  County  Court  of  the  county  where  the  land 
is  situated,  (rt) 

VII.  The  right  and  capacity  of  a  corporation  to  sue  and  to  be 
sued.  —  It  is  a  reasonable  deduction  from  the  capacity  of  a  cor- 
poration to  acquire  rights  under  contracts  and  otherwise,  that  it 
should  have  the  power  to  present  its  rights  in  court  for  enforce- 

1  Hill  on  Trustees,  462,  463.  Id.  c.  11  ;  43  Id.  c.  9.     These  extend  the 

2  A  statute  in  England,  known  as  Sir  provisions  of  1  Eliz  c.  19,  which  referred 
Samuel  Eomilly's  Act,  allows  a  petition  to  grants  made  by  bishops  and  archbishops 
to  be  resorted  to.  52  Geo.  III.  c.lOl  i  i^e  toother  ecclesiastical  and  eleemosynary 
Parke's  Charity,  12  Sim.  329.  corporations. 

3  This  seems  to  be  the  efTect  of  Wet-  ^  De  Euyter  v.  The  Trustees  of  St. 
more  v.  Parker,  52  N.  Y.  450,  though  the  Peter's  Church,  3  Barb.  Ch.  119  ;  on  ap- 
propertv  there  was  personal.  peal,  3  N.  Y.  238  ;  M.  A.  Baptist  Church 

*  2  Bl  Com.  320,  321.  The  statutes  v.  Baptist  Church  in  Oliver  St.,  46  N.  Y. 
are  13  Eliz.  c.  10  ;  14  Id.  c.  11  &  14  ;  18     131,  142,  143. 

(a)  For  the  procedure  in  such  cases,  see  may  apply  for  leave  to  mortgage  its  real 

Code  of  Civ.  Pro.  §§  3390-3397.     Matter  property      Laws  of  1890,  ch.  424,  amend- 

of  Church  of  the  Messiah,  25  Abb.  N.  C.  ii:g    ch.    fiO     Laws    of   1813.      Matter   of 

354.     In  the  same  manner  the  corporation  Church  of  the  Messiah,  supra. 


couroRATiONS.  377 

ment.  No  technical  obstacle  is  in  its  way,  for  it  is  a  person,  and 
may  appear  in  court  in  its  corporate  name,  however  numerous 
its  membership  may  be.  It  is  immaterial  whether  it  be  a  foreign 
or  a  domestic  corporation,  though  a  foreign  corporation  may,  if  a 
State  see  fit,  be  placed  under  some  restrictions,  not  applicable  to 
domestic  corporations,  such  as  being  required  to  give  security  for 
costs  chargeable  to  it  in  case  its  suit  is  unsuccessful.  The  rule 
includes  municipal  as  well  as  private  corporations.  So  a  State  of 
the  Union,  a  foreign  State,  or  a  monarch  may  sue  in  a  corporate 
capacity.  If  a  foreign  nation  sue  in  our  courts,  it  must  submit 
itself  to  the  usual  rules  applicable  to  })laintiffs  in  actions.' 

Under  these  rules  a  foreign  sovereign  might  sue  in  a  court  of 
equity  as  well  as  of  law.^  For  example,  he  might  bring  an  action 
here  to  protect  from  invasion  his  right  of  issuing  coin  or  paper 
money.^  No  distinction  is  made  in  the  English  courts  in  this 
respect  between  a  monarchy  and  a  republic.'*  The  minister  of  a 
foreign  nation  does  not  so  represent  the  nation  itself  that  he  can 
bring  an  action  in  his  own  name  to  recover  national  property.'^ 
A  State  of  the  United  States  may  sue  in  the  Federal  or  State 
courts  in  a  proper  case.^ 

The  right  of  a  corporation  chartered  in  one  State  to  sue  a  citi- 
zen or  corporation  of  another  State  in  the  Federal  courts  is 
guaranteed  by  the  United  States  Constitution  ; '  and  a  corporation 
created  by  the  laws  of  one  State  may  maintain  an  action  in  the 
Federal  courts  of  another  State.^  It  is  a  presumption  which  the 
courts  will  not  allow  to  be  rebutted,  that  if  a  corporation  has  a 
legal  existence  in  a  State,  its  corporators  are  citizens  of  that  State 
for  the  purpose  of  availing  itself  of  this  principle.^  It  has  been 
further  decided  that  a  corporation  chartered  in  a  foreign  country 
may  be  treated  as  an  alien,"^  and  for  the  same  purpose,  it  would 
seem,  its  members  might  be  presumed  to  be  aliens. 

i  Republic  of  Peru  v.  Weguelin,  L.  R.  Illinois,    26    Wend.    192     (Senator    Vf.r- 

20  Eq.  140.  plaxck's  opinion),  and  2  Hill,  159  (BiiuN- 

2  King  of  Spain  v.  Hullett,  1  CI.  &  F.  son's,  J.,  opinion). 
333.  '  Art.  III.  §  2. 

2  Emperor  of  Austria  v.  Day  and  Kos-  ^  Insurance  Co.  v.  "The  C.  D.  Jr.,"  1 

suth,  2  Giff.  628;  s.  c.  3  De  G.   F.   &  J.,  Woods,  72  ;  Nat.  Park  Bank  v.   Nichols 

217.  4  Bis.  315  ;  Williams  v.  Missouri  K.  &  T. 

4  United  States  v.  Prioleau,  2  H.  &  M.  R.  R.  To.,  3  Dill.  267. 
559  ;  United  States  v.  McRae,  L.  R.  8  Eq.  ^  This  point  at  one  time  was  a  matter 

69  ;  United  States  v.  Wagner,  L.  R.  2  Ch.  of  great  uncertainty,  but  is  now  settled  as 

App.  582.  .stated  in  the  text.     Ohio  &  M.  R.  R.   Co. 

s  Baron  Penedo  v.  Johnson,  29  L.  T.  v.   Wheeler,    1   Black,   286  ;    Ins.   Co,    v. 

N.  s.  452.  Francis,   11    Wall.   210;   Railroad  Co.   v. 

8  As  to  the  right  of  a  State  of  the  Union  Harris,  12  Id.  65  ;  Railway  Co.  v.  Whitton, 

to  sue  in  the  courts  of  a  sister  State,  see  13  Id.  270. 

State  of  Illinois  v.  Delafield,  8  Paige,  527  ;         ^  Society,  &c.  i^.  New  Haven,  8  Wheat. 

S.  c.  under  name  of  Delatield  v.  State  of  464. 


378  I'HE    LAW    OF    PERSONS. 

The  liability  of  a  corporation  to  he  sued  is  not  governed  in  all 
respects  by  the  same  principles  as  the  right  to  sue.  The  case  of 
domestic  corporations,  foreign  corporations,  and  foreign  states 
will  be  considered  separately. 

A  domestic  corporation  may  be  sued  in  the  courts  of  the  State 
where  it  is  chartered,  or  in  the  Federal  courts,  embracing  the 
State  of  its  origin,  in  the  cases  allowed  by  the  United  States 
Constitution.  The  proceedings  in  this  case  are  not  substantially 
different  in  an  ordinary  action  from  those  which  prevail  in  the 
case  of  a  natural  person,  A  successful  party  may  obtain  judg- 
ment, issue  an  execution,  and  sell  the  property  of  a  corporate 
debtor,  as  in  the  case  of  an  individual  debtor.  The  creditor 
cannot  sell  the  corporate  franchise  in  this  manner.  This  can 
only  be  reached  by  a  proceeding  in  a  court  of  equity. 

Corporations  are  in  modern  times  largely  treated  as  holding 
their  property  in  trust,  so  that  the  most  important  litigations  to 
which  they  are  subject  are  in  courts  of  equity.  Courts  of  that 
class  have  the  power  to  deal  with  the  intricate  questions  involved 
through  the  medium  of  receivers  and  other  officers,  and  by  means 
of  such  orders  and  directions  as  are  flexible  and  calculated  to 
secure  the  rights  of  creditors  with  a  due  regard  to  the  interests 
of  shareholders  and  others  interested  in  the  corporate  property. 
The  details  of  this  subject  must  be  sought  in  local  State  statutes 
and  in  treatises  and  reports  in  equity. 

A  foreign  corporation  could  not,  at  common  law,  be  sued  in  the 
courts  of  another  State  in  regular  form,  since  it  could  not  be  found 
there.  It  was  considered  to  be  always  a  non-resideyit  defendant  if 
sued  in  another  State,  incapable  of  leaving  the  State  of  its  origin. ^ 
This  general  rule  has  been  modified  in  many  States  by  statutes 
authorizing  the  corporation's  property  to  be  seized  and  appro- 
priated to  the  payment  of  its  debts.  Such  a  proceeding  has  for 
its  object  the  appropriation  of  property  within  the  State  rather  than 
the  rendering  of  a  judgment  enforceable  in  another  State,^  (a) 

1  Lathrop  v.   Union  Pacific  Ry.  Co.,  1  2  Pennoyer  v.  Neff,  95  U.  S.  7U. 

MacArthur,  234  ;    Matter  of  M 'Queen    v. 
Middletown  Mfg.  Co.,  16  Johns.  5. 


(«)  The  doctrine  that  a  foreign  corpo-  rations  are  admitted  to  do  business  only 

ration  is  without  the  jurisdiction  of  every  upon  the  condition  that  they  shall  desig- 

State  except  the  State  wherein  it  is  or-  nate  some  agent  or  perhaps  some  public 

ganized  has  been  modified  by  statutes  in  officer  to  receive  service   in  their  behalf, 

many   States    to  the   extent   of   allowing  If  an   action   is  begun    in    this   manner, 

service  of  process  upon  representatives  of  the  court  acquires  jurisdiction,  and  may 

such  a  corporation   doing  business  within  render  a  judgment  valid  and  canalVie  of 

the  State.     St.  Clair  v.   Cox,   106  U.  S.  being  enforced  upon  any  property  within 

350.  the  jurisdiction.      Gibbs    v.   Queen    Ins. 

In  not  a  few  States,  also,  foreign  corpo-  Co.,  63  N.  Y.  IH  ;    Ex  parte  Schollen- 


COIiPOKATlOXS. 


179 


The  statutes  of  New  York  upon  this  subject  are  to  he  found  in 
the  Code  of  Civil  Procedure.^ 

The  question  of  the  liabiHty  of  a  foreign  sovereign  or  govern- 
ment to  be  sued  has  not  to  any  extent  been  presented  in  this 
country,  though  it  has  frequently  been  passed  upon  in  the  English 
courts.  In  a  number  of  cases  this  has  been  due  to  the  tem- 
porary presence  of  a  foreign  king  in  England.  It  is  there  declared 
to  be  a  general  rule  that  no  action  is  maintainable  in  an  English 
court  against  a  foreign  sovereign  for  anything  done,  or  omitted  to 
be  done,  in  his  public  capacity  as  representative  of  the  nation  of 
which  he  is  the  head.^  This  rule  is  applied  even  though  the  sov- 
ereign is  also  a  British  subject. ^  The  Khedive  of  Egypt  is  not  a 
sovereign  prince  within  this  rule.* 

An  important  qualiiication  of  this  rule  has  been  made  when  a 
foreign  government  places  funds  in  the  hands  of  an  agent  in  Eng- 
land to  pay  a  contractor  the  amount  due  under  a  contract.  Such 
a  transaction,  if  unequivocal,  might  be  regarded  as  an  assignment 
(in  equity)  to  the  contractor,  or  a  sjyecies  of  trust  in  his  favor 
which  a  court  of  equity  would  administer.^    This  exception  will 

1  See  §§  432,  707,  &  1780. 

2  Matter  of  De  Haber  and  Queen  of 
Portugal ;  Wadsworth  and  Queen  of  Spain, 
17  Q.  B.  171. 

3  Bi'unswick  v.  King  of  Hanover,  2  H. 
L.  Cases,  1. 


*  The  Charkieh,  28  L.  T.  N.  s.  513. 

5  Lariviere  v.  Morgan,  L.  R.  7  Ch. 
App.  550  ;  on  appeal,  L.  R,  7  H.  L.  423. 
This  last  decision  reverses  the  lower  court. 


berger,  96  U.  S.  369  ;  Van  Dresser  v. 
Oregon  Ry.  &  Nav.  Co.,  48  Fed.  R.  202. 
Such  a  judgment  would  also  be  entitled 
to  full  faith  and  credit  in  another  State. 
Lafayette  Ins.  Co.  v.  French,  18  How. 
U.  S.  404;  Pringle  v.  Woolworth,  90 
N.  Y.  502.  If  the  corporation  failed  to 
comply  with  the  statute,  it  would  not,  it 
is  believed,  be  permitted  to  assert  its  non- 
compliance in  order  to  avoid  the  jurisdic- 
tion of  the  courts,  and  service  made  on 
an  agent  or  the  prescribed  public  officer 
would  be  held  sufficient.  Ehrman  v.  Teu- 
tonia  Ins.  Co.,  1  McCrary,  123  ;  Hager- 
man  v.  Empire  Slate  Co.,  97  Pa.  St.  534. 

It  is  stated  positively  by  many  authori- 
ties that  in  order  to  be  valid  elsewhere,  a 
judgment  against  a  foreign  corporation 
must  show  on  its  face  that  the  corporation 
is  doing  business  in  the  State  where  the 
judgment  was  rendered.  Black  on  Judg- 
ments, §  910  ;  Freeman  on  Judgments, 
§1206;  St.  Clair  v.  Cox,  supra;  Hen- 
ning  V.  Planters  Ins.  Co.,  28  Fed.  R.  440  ; 
Hazeltine   v.  Mississii^pi   Val.    Fire   Ins. 


Co.,  55  Fed.  R.  743  ;  Moulin  v.  Ins.  Co., 
24  N.  J.  Law  R.  242.  Nevertheless,  it 
has  been  held  in  New  York  under  the 
statutes  of  that  State,  that  the  court-  ac- 
quired jurisdiction  over  a  foreign  corpora- 
tion having  no  office  or  property,  and 
doing  no  business  within  the  State,  by 
the  service  of  a  summons  upon  an 
officer  temporarily  in  the  State  for  pur- 
poses of  his  own.  It  was  further  stated 
that  a  judgment  obtained  upon  such  ser- 
vice would  be  valid  for  every  purpose 
within  the  State,  though  its  effect  else- 
where was  not  discussed.  Pope  v.  Terra 
Haute  Car  ilanuf.  Co.,  87  N.  Y.  137. 
See  also  Hiller  v.  Burlington,  &c.  Ry. 
Co.,  70  N.  Y.  223;  Tuchband  v.  Chi- 
cago &  Alton  Ry.  Co.,  115  N.  Y.  437. 
A  contrary  rule  to  that  laid  down  in  Pope 
V.  Terre  Haute  Car  Manuf.  Co.,  siqjra,  is 
maintained  in  Phillips  v.  Library  Co.,  141 
Pa.  St.  462.  See  also  Jloulin  v.  Insurance 
Co.,  supra  ;  Newell  v.  The  Great  Western 
Ry.  Co.,  19  Mich.  336  ;  State  v.  Dist. 
Court  for  Ramsey  Co.,  26  Minn.  233. 


3S0  THE    LAW    OF    PERSONS. 

not  be  applied  in  favor  of  the  holder  of  the  bonds  of  a  foreign 
government,  though  there  be  money  in  England  in  the  hands  of 
an  agent  which  the  foreign  government  has  bound  itself  to  direct 
him  to  apply  to  the  payment  of  interest.  In  this  last  case  there 
is  no  fiduciary  relation  between  the  agent  and  the  bond-holders.^ 
To  appropriate  the  fund  would  be  an  indirect  mode  of  holding 
the  foreign  government  responsible  for  the  payment  of  its  bonds 
in  an  English  court.  In  these  last  two  cases  the  foreign  govern- 
ment did  not  appear  in  the  action.  It  would  seem  that  it  might 
appear,  if  it  saw  fit,  and  submit  to  the  jurisdiction  of  the  court 
in  appropriating  the  funds. 

It  is  a  general  rule  that  a  State  cannot  be  sued  in  its  own 
courts  without  its  consent.  It  may,  however,  upon  grounds  of 
justice  and  expediency,  allow  itself  to  be  sued  in  certain  cases,  as 
has  long  been  the  rule  in  England,  by  means  of  a  proceeding 
ter)ned  "  a  petition  of  right."  '^  By  a  similar  course,  claims 
against  the  United  States  are  decided  by  the  Court  of  Claims. 
Something  resembling  this  is  found  in  some  of  our  States. 

There  was  a  provision  of  great  breadth  in  the  United  States 
Constitution,  as  at  first  adopted,  permitting  an  action  or  suit  to  be 
brought  by  individual  plaintiffs  in  the  United  States  courts  against 
a  State.^  This  provision  was  construed  by  the  Supreme  Court  of 
the  United  States  to  permit  an  individual  citizen  of  one  State  to 
bring  an  action  against  a  State  of  which  he  was  not  a  citizen  in 
the  Federal  Court.*  This  decision  led  to  the  Eleventh  Amend- 
ment of  the  Constitution,  as  follows  :  "  The  judicial  power  of  the 
United  States  shall  not  be  construed  to  extend  to  any  suit  in  law 
or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State  or  by  citizens  or  subjects  of 
any  foreign  state."  The  plain  effect  of  this  clause  is  to  prevent 
a  direct  action  or  suit  against  the  State  by  a  citizen  either  of  this 
country  or  of  a  foreign  country.  A  controversy  of  great  moment 
has  arisen  as  to  the  point  whether  this  clause  prevents  proceed- 
ings against  the  agents  of  the  State  who,  in  obedience  to  a  law  of 
tlie  State,  assume  to  violate  the  obligation  of  a  contract  claimed 
to  have  been  made  between  the  State  and  individuals.  The 
Supreme  Court  of  the  United  States,  by  a  narrow  majority,  has 
decided  that  an  action  might  be  brought  against  the  agents  of  the 

1  Twycross  v.  Dreyfus,  L.  R.  5  Ch.  two  or  more  States ;  between  a  State  and 
Div.  605.  citizens  of  another  State,  .  .  .  and  between 

2  See  ante,  p.  3.  a  State  or  the  citizens  thereof  and  foreign 

3  Art.  III.   §  2.     The  words  are   that     States,  citizens,  or  subjects." 

the  judicial  power  of  the  United  States  *  Chisholm  v.  Georgia,  2  Dall.  419. 

shall  extend   "  to   controversies    between 


CORPORATIONS.  3S1 

State  in  such  a  case,  notwithstanding  the  constitutional  provision, 
as  that  would  not  be  an  action  against  the  State.  If  a  tax  col- 
lector or  other  State  officer  takes  the  property  of  a  private  person 
under  an  unconstitutional  law,  he  cannot  shield  himself  from 
liability,  since  such  a  pretended  law  is  in  truth  not  a  law ;  so  that 
the  action  is  really  against  him  as  if  he  had  not  been  an  officer.^ 
This  principle  will  not  permit  a  suit  to  be  brought  nominally 
against  a  State  officer,  which  is  in  reality  a  suit  against  the  State  ; 
as  if  the  object  be,  for  example,  to  determine  the  obligations  of 
the  State  on  certain  State  scrip.^ 

A  suit  to  compel  State  officers  to  do  that  which  a  State  statute 
requires  them  to  do  is  not  a  suit  against  the  State  in  the  sense  of 
the  Constitution.^ 

VIII.  Special  questions  as  to  the  powers  of  corporations.  — 
(1)  The  question  of  status.  —  Under  this  topic  will  be  considered 
two  principal  points  :  first,  the  domicile  of  a  corporation  ;  second, 
the  capacity  of  a  corporation  to  act  beyond  the  limits  of  the 
State  creating  it. 

It  is  a  rule  of  American  law  that  a  corporation  is  domiciled  in 
the  State  where  it  is  created.^  It  cannot,  if  a  trading  corporation, 
hold  a  meeting  of  stockholders  beyond  the  State  limits.^  (a) 

The  rule  in  English  law  is  different,  as  it  allows  the  domicile  of 
a  trading  corporation  to  be  determined  by  the  place  where  the 
principal  business  is  carried  on,  "  where  it  has  the  centre  of  its 
affairs"  (^der'  Mittelpunkt  der  Geschafte'),  even  though  bevond 
the  territory  of  the  State  where  the  corporation  is  created.  In  a 
recent  case  the  English  court  inquired  on  this  basis  whether  an 
English  corporation  was  domiciled  in  Italy,  and,  in  the  same  con- 
nection, whether  a  corporation  was  domiciled  in  Calcutta.<5 

Leaving  this  question  out  of  view,  the  general  rule  would  be 

1  Poindexter  v.   Greenhow,    114  U.  S.  Black,  286;  B.  &  0.  R.  R.  Co.  v.   Glenn, 
270;  White  v.   Greenhow,   Id.    307;    and  28  Md.  287;   Blackstone   Manuf.    Co.    v. 
other  cases   (called  the  Virginia  Coupon  Inhab.  of  Blackstone,  13  Gray,  4S8. 
Cases).  5  Ormsby  v.  Vermont  Copper  Min.  Co., 

2  Hagood  V.  Southern,  117  U.  S.   52.  56  N.  Y.  623. 

In  re  Ayers,  123  U.  S.  443.  6  Cesena  Sulphur  Co.  v.  Nicholson,  L. 

3  Rolston  V.  Missouri  Fund  Com'rs,  120  R.  1  Exch.  Div.  428 ;  Calcutta  Jute  Mills 
U.  S.  390.  Co.  V.  Nicholson,  Id.     See  also  Attorney- 

4  Bank  of  Augusta  v.  Earle,   13   Pet.  General  i?.  Alexander,  L.  R.  10  Exch.  20. 
519;  Ohio  &  M.  R.  R.  Co.  v.  Wheeler,  1 

(«)  A  corporation  chartered  by  several  tion  coidd- hold  meetings  of  its  stockholders 
States  with  the  same  capacities  and  powers  in  any  one  State,  so  as  to  bind  the  corpora- 
has  been  held  to  have  a  domicile  in  each  tion  in  respect  to  its  property  everywhere. 
State,  County  of  Allegheny  v.  Cleveland,  Graham  v.  Boston,  etc.  Ry.  Co.,  118  U.  S. 
etc.  Ry.  Co.  51  Pa.  St.  228.  In  the  ab-  161. 
sence  of  statutory  provision,  such  a  corpora- 


382  THE    LAW    OF    PERSONS. 

as  to  the  local  place  of  residence  of  a  trading  corporation  within 
the  state  of  its  domicile,  that  the  principal  place  of  administration 
must  be  regarded.^  Where  the  inquiry  is  as  to  other  corpora- 
tions, such  as  churches  or  charitable  corporations,  the  general 
rule  is  that  they  reside  where  their  functions  are  to  be  discharged. 
So  that  a  church  organized  for  work  in  the  city  of  New  York  has 
its  residence  there.^ 

The  existence  of  a  foreign  corporation  is  recognized  in  the 
courts  of  other  States.  The  capacity  to  enter  into  legal  trans- 
actions in  such  a  case  must  be  determined  by  an  examination  of 
the  law  constituting  the  corporation,  as  well  as  of  the  country 
where  the  transactions  take  place. 

A  State  may  prevent  a  foreign  corporation  from  entering  into  a 
contract  which  it  might  allow  in  the  case  of  a  domestic  corpora- 
tion. This  principle  applies  as  between  the  States  of  the  Union. 
A  corporation  chartered  in  Ohio  is  in  New  York  a  foreign  corpo- 
ration. A  State  of  the  Union  may  impose  conditions  upon  a 
corporation  chartered  elsewhere  as  to  business  transacted  within 
its  limits.  These  must  be  observed,  and  a  contract  made  without 
observance  of  them  will  be  void.^(a)  Thus,  if  the  provision  were 
that  a  foreign  corporation,  before  doing  any  business  in  the  State, 
must  duly  execute  a  power  of  attorney  appointing  an  agent,  upon 
whom  all  legal  process  may  be  served  in  suits  against  the  corpo- 
ration, a  contract  made  without  such  an  appointment  would  be 
illegal  and  void.*  A  statute  requiring  an  act  to  be  done  after 
commencing  business,  such  as  filing  a  specified  instrument  within 
thirty  days  after  that  time,  would  not  prohibit  the  corporation 
from  continuing  business  after  the  time  had  expired,  even  though 
it  had  failed  to  comply  with  the  statute.^ 

A  law  passed  by  a  State  legislature  prohibiting  a  foreign  cor- 
poration when  sued  in  its  courts  from  removing  the  case  under 
the  provisions  of  the  Act  of  Congress  applicable  to  the  subject  into 
the  United  States  courts,  is  unconstitutional  and  void,  and  the 

1  Keynshara  Blue  Lias  Co.  v.  Baker,  2  *  In  re  Comstock,  3  Sawy.  C.  Ct.  218  ; 
H.&  0.^729;  Taylor  i;.  The  Crowland  Gas  Semple  v.  Bank  of  British  Columbia,  5 
&  Coke  Co.,  11  Exch.  1;  Adams  v.  Gt.  W.     Sawy.  88. 

R.  R.  Co.,  6  H.  &  N.  404.  s'jSTorthwestern   Mut.  Life  Ins.  Co.  v. 

2  Dicey  on  Domicil,  111,  112.  Overholt,  6  Cent.  L.  J.  188. 
2  Lamb  v.  Lamb,  13  Bankr.  Reg.  17. 


(a)  Union  Cent.  Life  Ins.  Co  v.  Thomas,  void  unless  it  is  plain  the  legislature  so  in- 

46  Ind.  44;  Dudley  v.  Collier,  87  Ala.  431.  tended.     Toledo  Tie,  etc.  Co.  v.  Thomas, 

A  distinction  is  made  by  some  authorities  33  W.  Ya.   566 ;    Sherwood  v.  Alvis,    83 

between  executed  and  executory  contracts.  Ala.  115  ;  Morawetz,  Private  Corporations, 

Farrior  v.   New  Eng.   Mort.  Co.,   88  Ala.  §  665. 
275.      The  contract  will  not  be  declared 


CORPORATIONS.  3S3 

removal  may  be  made  regardless  of  the  law.  Still,  if  a  law 
should  be  framed  so  as  to  revoke  the  license  of  a  foreign  corporation 
to  do  business  within  the  State  if  it  made  such  a  removal,  the  law 
would  be  valid,  and  the  corporation  would  have  to  elect  between 
withdrawing  from  the  State  and  complying  with  the  law.  This 
rule  rests  upon  the  proposition  tliat  as  the  State  has  the  right  to 
exclude  foreign  corporations,  the  Federal  courts  will  not  inquire 
into  the  reasons  for  the  State's  action,  or  into  the  means  of 
enforcing  it.^ 

(2)  Corporatiotis  as  trustees.  —  It  was  formerly  a  mooted  ques- 
tion whether  a  corporation  could  be  a  trustee.  It  is  now  well 
settled  that  it  can  be.  Any  other  view  is  based  on  a  mere  techni- 
cality. If  a  trading  corporation,  it  is  a  trustee  as  between  itself 
and  its  shareholders.  It  may  also  hold  property  in  express  trust, 
as  has  been  shown  in  the  case  of  charitable  corporations.  More- 
over, in  modern  times  corporations  are  expressly  created  for  the 
purpose  of  acting  as  trustees  for  third  persons.  Of  these  there 
are  many  examples  in  the  State  of  New  York,  having  large  capital 
and  transacting  a  great  amount  of  fiduciary  business.  These  cor- 
porations, called  Trust  Companies,  act  as  guardians  for  wards, 
so  far  as  administering  estates  are  concerned,  as-  trustees  to  pay 
over  income  to  beneficiaries,  as  trustees  of  railroad  mortgages  in 
behalf  of  bondholders,  and  in  other  analogous  transactions.  Com- 
panies of  this  class  are  placed  under  the  control  of  the  superin- 
tendent of  the  banking  department,  and  are  required  to  make 
periodical  reports  to  him,  and  to  submit  to  an  examination  by 
competent  experts,  and  to  deposit  with  him  as  a  guarantee  fund 
ten  per  cent,  of  their  paid  up  capital  stock,  (a)  Companies  of 
this  class  have  proved  highly  useful  to  the  community,  and,  with 
few  exceptions,  have  been  managed  with  fidelity  and  success. 

(3)  Construction  of  corporate  charters.  —  It  is  a  general  rule 
of  law  that  a  corporation  possesses  no  powers  except  those  Avhich 
are  specifically  granted,  or  which  are  incidental  to  specific  grants. 
This  general  rule  is  declared  by  statute  also  in  some  States ;  e.  g., 
in  New  York.  Whenever  privileges  are  granted  to  a  corporation, 
they  are  to  be  strictly  construed ;  nothing  passes  but  what  is 
granted  in  clear  and  explicit  terms.^  The  principal  difficulty  is 
in  determining  what  powers  are  incidental  to  specific  grants.  A 
few  instances  may  be  mentioned. 

Thus,  a  corporation  has  an  implied  power  to  accept  a  bill  of 

1  Doyle   V.  Continental    Ins.    Co.,    94         ^  Peoples.  Newton,  112 N.  Y.  396, 
U.  S.  535.  

{a)  See  Laws  of  1S92,  ch.  6S9,  §  14. 


3S4  THE    LAW    OF    PERSONS. 

exchange  or  make  a  promissory  note  based  upon  a  debt  contracted 
by  it  in  the  course  of  its  business.^  This  rule  could  not  be  ap- 
plied to  a  note  given  outside  of  its  legitimate  business.  It  must 
affirmatively  appear  that  it  was  made  in  the  course  of  its  business.^ 
This  rule  is  applied  to  a  municipal  corporation  as  well  as  to  one 
of  a  private  nature.^ 

A  corporation  has  an  implied  power  to  borrow  money  to  use  in 
its  legitimate  business,  and  to  give  its  note  or  draft  on  that 
account.'^  It  may,  of  course,  pay  its  lawful  debts,  and  may  to 
that  end  make  a  general  assignment  in  trust  for  its  creditors, 
unless  prohibited  by  statute.^  (a)  A  trading  corporation  may,  as 
a  trustee  for  its  stockholders,  bring  an  action  in  their  behalf  to 
cancel  spurious  certificates  of  stock. ^  It  cannot,  however,  as  a 
rule,  use  its  funds  to  sustain  another  corporation,  (h)  A  corpora- 
tion having  power  to  insure  lives  has  an  incidental  power  to 
invest  its  property  (held  as  a  protection  for  the  insured)  in 
approved  securities,  such  as  suitable  bonds  and  mortgages." 

If,  however,  a  corporation  be  restricted  by  statute  to  a  par- 
ticular mode  of  doing  business,  it  must  follow  that  method.  If  it 
have  authority  to  loan  only  upon  bond  and  mortgage,  any  other 
investment  will  be  void.^  This  is  true  both  of  the  security  and 
the  loan  itself.^ 

Though  some  of  these  cases  seem  severe  and  harsh  in  their 
operation,  they  would  appear  to  be  sound,  as  long  as  the  view 
prevails  that  a  corporation  is  a  creature  of  limited  powers. 

Section  IV.  The  Visitation  of  Charitable  Corporations.  — The 
word  "  visit,"  as  here  used,  means  the  right  of  one  or  more  per- 
sons known  as  visitors,  to  examine  into  the  condition  of  the  cor- 
poration, to  search  for  abuses  and  irregularities,  and  to  correct 
them  if  found  to  exist.  In  some  instances  their  action  is  invoked 
by  persons  interested  in  the  corporate  affairs.     If  the  corporate 

1  Moss  V.  Oakley,  2  Hill,  265  ;  Part-  ^  jj.  y.  &  N.  H.  R.  R.  Co.  v.  Schuyler 
ridge  v.  Badger,  25  Barb.  146.  17  N.  Y.  592. 

2  McCullough  V.  Moss,  5  Den.  567.  "^  Farmers'  Loan  &  Trust  Co.  v.  Clowes, 

3  Halstead  v.  Mayor,  &c.  of  N.  Y.,  3  3  N.  Y.  470. 

N.  Y.  430.  8  New  York  Firemen  Ins.  Co.  v.  Ely, 

*  Curtis  V.  Leavitt,  15  N.  Y.  9.  2  Cow.  678. 

5  Hurlbut  V.  Carter,  21  Barb.  221.  ^  Life  &  Fire  Ins.  Co.  v.  Meclianic  Fire 

Ins.  Co.,  7  Wend.  31. 


(a)  Such   assignments  are    frequently  be   upheld,   if  valid   by  the  laws  of  its 

prohibited,  when  the  corporation  is  insol-  domicile,   even  though  executed  in  New 

vent.     In  New  York,  see  The  Stock  Cor-  York.     Vanderpoel  v.  Gorman,  140  N.  Y. 

poration   Law,  §  48.     In  the  absence  of  563. 

express  words,  a  foreign  corporation  is  not  (b)  Cf.  Holmes  v.  Willard,  125  N.  Y. 

rpgarded  as  within  the  terms  of  this  pro-  75. 
hibition,  and  an  assignment  by  it  would 


CORPORATIONS.  385 

body  has  become  inactive  or  dormant,  it  should  be  stimulated 
to  action.  If  it  is  acting  extravagantly  and  without  due  warrant, 
it  should  be  restrained. 

Visitation,  in  its  strict  sense,  is  applicable  to  charitable  and 
ecclesiastical  corporations.  It  is  not  necessary  to  consider  the 
case  of  ecclesiastical  corporations,  there  being  none  in  this 
country. 

The  "  visitation  "  of  charitable  corporations  is  derived  from  the 
doctrine  of  foundations  and  "founders."  The  word  "founder" 
is  used  in  two  senses  in  English  corporation  law.  One  meaning 
refers  to  the  person  who  in  the  outset  supplies  the  property  to 
carry  on  the  corporate  business ;  the  other  refers  to  the  king  or 
other  authority  that  gives  legal  existence  to  the  corporation.  No 
particular  words  are  necessary  to  create  a  visitor.  An  authority 
to  one  to  inspect  the  foundation  and  correct  what  he  may  find 
amiss,  makes  him  a  visitor.  The  necessity  of  a  visitor  arises 
from  the  fact  that  charitable  institutions  are  in  their  nature  per- 
petual, and  in  the  lapse  of  time  abuses  may  arise.  "  Visiting"  is 
not  confined  to  corporations,  but  may  extend  to  unincorporated 
trustees.  The  more  common  case  found  in  the  law  books  is  the 
visitation  of  corporations.  There  may  be  a  series  of  founda- 
tions made  by  different  persons,  so  that  one  may  have  an  original 
design  upon  which  later  foundations  are  grafted.  In  such  a  case 
the  one  who  first  supplied  the  funds  would  be  deemed  the  founder, 
unless  there  may  be  special  circumstances  varying  the  rule.  Tlie 
king,  in  England,  has  in  many  instances  established  a  charitable 
foundation.  The  Lord  Chancellor,  in  such  a  case,  becomes  a  visi- 
tor, as  representing  the  king.  He  does  not  in  such  a  case  hold 
the  Court  of  Chancery,  but  has  an  authority  resembling  that  of  a 
visitor  on  a  private  foundation  or  an  endowment. 

In  other  cases,  the  visitatorial  power  vests  in  the  founder,  and 
on  his  death  passes  to  his  heirs  ;  but  if  he  leave  no  heirs,  it  de- 
volves upon  the  king.  The  authority  may  be  delegated  to  others 
by  the  founder.  The  fundamental  principle  is,  that  the  owner  of 
the  property  has  the  right  to  oversee  within  certain  limits  the 
disposition  that  may  be  made  of  it. 

It  is  common  for  the  founder  to  lay  down  rules  for  the  manage- 
ment of  the  institution.  These  are  commonly  called  statutes.  It 
is  a  part  of  the  business  of  the  visitor  to  see  that  these  "  statutes" 
are  observed.  These  statutes  are  frequently  in  England  of  long 
standing,  often  whimsical  in  their  nature,  and  poorly  suited  to 
modern  conditions  of  life.  Unless  contrary  to  public  policy,  or 
illegal  in  their  nature,  they  will  be  enforced,  the  will  of  the 
founder,  though  long  since  dead,  being  still  followed.     Some 

25 


386  THE   LAW   OF   PERSONS. 

remarkable  instances  of  this  rule  are  found  collected  in  a  work 
called  "  The  Dead  Hand."  i 

A  distinction  in  the  law  of  visitation  of  corporate  charities  is 
to  be  taken  between  the  case  where  the  funds  belong  to  the  cor- 
poration for  its  general  purposes,  and  where  they  are  vested  in  it 
for  special  purposes,  or,  in  other  words,  held  on  special  trusts. 
The  distinction  is  so  important  that  illustrative  examples  will  be 
useful. 

Let  it  be  supposed  that  a  testator  simply  bequeaths  to  a  college 
ten  thousand  dollars.  No  restriction  is  placed  by  him  upon  the 
use  of  the  money.  The  corporation  may  use  it  for  any  legitimate 
purpose.  It  holds  the  property  in  a  fiduciary  character,  but  not 
on  any  special  trust.  On  the  other  hand,  let  a  testator  give  a 
fund  to  be  invested,  of  which  the  income  shall  be  used  to  found 
a  particular  professorship,  or  establish  a  scholarship  to  be  filled 
only  from  time  to  time  by  beneficiaries  bearing  his  own  name. 
There  is  now  a  special  trust.  These  two  cases  will  now  be  treated 
separately. 

(1)  Charitable  funds  held  for  general  purposes.  —  A  prelimi- 
nary remark  may  properly  be  made  as  to  the  meaning  of  the  word 
"charitable,"  as  applied  to  corporations,  and  also  applicable  to 
trusts   under  the  care  of  trustees,  not  incorporated.     The  word 

1  This  book  was  written  by  Sir  Arthur  hundred    years   ago.      Other    cases    still 

Hobhouse,  now   Lord   Hobhouse,   a  law-  more    peculiar    might    have    been   cited, 

yer  of  great  distinction,  an  English  judge,  Sometimes   the   statutes    encourage    wild 

and  a  member  of  the  judicial  committee  acts  on  the  part  of  the  students,  as  in  Sir 

of  the  Privy  Council.    (London,  1S80.)    He  John  Deane's  charity  in  Wilton,  County  of 

refers  to  the  case  of  Bishop  Pursglove,  who  Chester,   A.  D.   1557,   where   the   scholars 

founded  a  school  in  Hull  in  the  year  1560.  were  directed  by  the  founder  to  "  bar  out 

His  scholars  were  to  range  from  those  who  the  schoolmaster  "  a   week  before  Easter 

had  not  yet  learned  to  speak  plainly  to  and  Christmas. 

those  who  could  read  Horace  and  Cicero,  It  has  been  suggested  by  leading  writers 

and   write    Latin   verses.      The   school  is  on  this  topic,  that  the  rules  of  law  should 

divided  into  four  forms,  and  the  studies  be  more  flexible  than  at  present,  and  that 

of  each  form  were  prescribed  by  the  bishop  while  the  views  of  "  founders  "  or  donors 

in  minute  detail.     The   whole    teaching,  should  be  observed  when  their  plans  are 

substantially,  is  to  be  done  by  the  master  reasonable    or    practicable,   yet  that   the 

in  person,   beginning  with   teaching  the  proper  court  should  have  power  to  modify 

children   to   pronounce   and   sound   their  them  where  there  is  clear  reason  to  justify 

letters, and  ending  with  the  highest  work,  such   action.      See    "The    Dead    Hand," 

He  must  be  teaching  ten  hours  per  day  in  p.  229.     Any  scheme  of  this  kind  should  be 

the  summer  and  eight  in  the  winter,  with  adopted  with  much  caution,  as  it  might 

only  five  weeks'  vacation.     The  scheme  of  result   in   diminishing   or   perhaps   extin- 

the    bishop    still   prevails,    leading   to   a  guishing  charitable  gifts  or  bequests.     In 

deadly  feud  from  time   to   time  between  this  country,  reference  would  have  to  be 

the  master  and  the  governors  of  the  char-  made  in  altering  the  charter  of  a  charitable 

ity,  who   threaten    to   dismiss  him  if  he  corporation  to  the  prohibitions  of  the  United 

does  not  follow  literally  the  plan  of  in-  States  Constitution  as  to  the  impairment 

struction  and  discipline  laid  down  three  of  the  obligation  of  contracts. 


CORPORATIONS.  3S7 

"  charitable  "  has  long  been  in  use  to  designate  trusts  for  public 
as  distinguished  from  private  purposes.  There  is  in  a  charity 
some  assumed  element  of  public  utility.  Although  in  existence 
from  the  earliest  period  (derived  in  all  probability  from  the 
Roman  law),  they  assumed  special  prominence  towards  the  close 
of  the  reign  of  Queen  Elizabeth,  owing  to  a  statute  passed  at 
that  time  making  an  enumeration  of  them,  and  providing  a 
special  judicial  mode  of  redressing  abuses  in  their  management.^ 
This  special  tribunal  was  auxiliary  to  the  Court  of  Chancery. 
After  a  time  it  became  obsolete,  and  the  entire  jurisdiction  was 
exercised  by  the  Court  of  Chancery.  The  enumeration  of  exist- 
ing charitable  institutions  was  very  imperfect,  so  that  the  court 
has  established  new  ones  from  time  to  time  as  occasion  required, 
having  in  them  the  essential  element  of  public  utility.  One 
highly  important  distinction  between  a  private  trust  and  a  charit- 
able trust  is,  that  while  the  former  can  only  be  made  for  a  limited 
period,  varying  in  the  different  States,  charitable  trusts  may  be 
made  perpetual;  so  that  a  fund  may  be  established  to  produce  a 
perpetual  income  to  be  devoted  from  time  to  time  to  the  purposes 
of  the  charity. 

Assuming  now  that  property  is  given  to  a  charitable  corpora- 
tion for  its  general  j'^urposes^  the  visitatorial  power  which  may 
be  vested  in  the  corporation  will  include  both  the  internal  man- 
agement of  its  affairs  and  the  disposition  of  its  property.  In 
other  words,  it  is  visitor  both  over  the  beneficiaries  and  over 
the  property,  though  as  its  relation  to  the  property  is  a  fiduciary 
one,  the  court  in  a  plain  case  of  diversion  of  the  property  to  ille- 
gitimate uses,  would  interfere. 

(2)  Special  trusts.  —  In  this  case  the  powers  of  the  visitors 
are  greatly  circumscribed.  A  general  statement  is,  that  while  the 
corporation  may  control  internal  management,  —  as,  for  exam{)le, 
pass  resolutions,  hold  examinations,  confer  degrees,  etc.,  —  3'et 
when  any  question  of  a  breach  of  trust  arises,  the  Court  of  Chan- 
cery may  give  redress,  without  reference  to  any  opposing  action 
of  the  visitor.  The  court  does  not  proceed  by  way  of  appeal,  but 
has  an  inherent  power  to  redress  the  breach  of  trust.  The  great 
case  on  this  subject,  Green  v.  Rutherforth,^  was  disposed  of  by 
Lord  Hardwicke,  and  has  ever  since  been  followed.  The  visitor 
may  be  the  founder,  or  his  heirs,  a  special  individual  appointed, 
or  a  corporation,  and  either  a  public,  ecclesiastical,  or  lay  corpo- 
ration. In  every  case,  the  inquiry  is  the  same ;  namely.  Is  there 
a  special  trust  ?  If  so,  has  it  been  violated  ?  If  the  public  at 
large  is  interested,  the  attorney-general  will  present  the  matter 

1  43  Eliz.  c.  4  (A.  D.  1601).  2  1  Ves.  Sr.  462. 


388  THE   LA.W   OF   PERSONS. 

to  the  court.  If  an  individual  is  injured,  as  if  a  professor  ap- 
pointed during  good  behavior,  and  having  a  fixed  stipend  from  a 
special  fund,  is  removed  im|)roperIy  by  the  visitor,  the  court  will 
interfere  on  his  own  application,  and  restore  him  to  his  rights.^ 

The  jurisdiction  of  the  visitor,  limited  as  already  stated,  is  in 
general  absolute  and  without  api)eal  upon  the  principle  that  in 
those  societies  error  of  judgment  or  even  the  cliance  of  partiality 
or  injustice  is  a  less  evil  than  the  duration  of  contention.^  The 
visitor  proceeds  in  a  summary  and  informal  manner;  still  the 
great  principle  must  be  followed  that  a  person  is  not  to  be  con- 
demned without  an  opportunity  to  be  heard. 

In  some  of  the  States  there  are  statutes  permitting  an  appeal 
from  the  sentences  of  visitors.  In  general,  however,  the  subject 
remains  substantially  as  at  common  law.  A  well-lvuown  example 
of  an  appeal  is  found  in  Massachusetts  in  the  instance  of  the 
Andover  Theological  Seminary.^  The  cases  cited  in  the  note 
involved  the  question  whether  the  visitors  proceeded  according 
to  law  in  the  removal  of  Professor  Murdock,  one  of  the  professors 
in  the  institution. 

The  subject  of  visitation  is  frequently  applied  to  the  manage- 
ment of  colleges  and  other  institutions  of  education.  Only  its 
general  principles  can  be  adopted  in  this  country,  owing  to 
the  difference  between  the  organization  of  such  institutions  in 
England  and  in  the  United  States.  In  tlie  English  colleges  the 
corporation  consists  of  the  teaching  and  governing  body  itself. 
There  no  board  of  trustees  exists  as  is  usually  the  case  here. 
The  visitor  is  called  in  occasionally  to  hear  an  appeal  or  to  quiet 
dissension.  He  is  frequently  but  a  single  person.  He  does  not 
act  directly  in  the  management  of  the  institution,  but  rather  con- 
trols the  acts  of  others,  and  keeps  them  within  the  requirements 
of  the  statutes.  He  is  not  the  corporation,  but  is  set  over  it.  On 
the  other  hand,  the  management  of  colleges  here  is  as  a  rule  con- 
fided to  persons  who  are  not  the  teachers  or  actual  governors,  but 
are  called  trustees.  These  form  the  corporation.  The  officers 
have  no  self-perpetuating  power,  and  as  a  rule  hold  office  at  the 

^  The  cases  in  England  upon  this  point  435.  For  cases  in  which  a  claimant  pre- 
are  now  very  numerous  and  uniform.  In  sented  his  own  claim  without  the  inter- 
addition  to  Green  v.  Paitherforth,  already  vention  of  the  Att'y-Gen'l  see  Thomson  v. 
cited,  there  may  be  examined  Att'y-Gon'l  University  of  London,  10  Jur.  N.  s.  669  ; 
V.  Corporation  of  Bedford,  2  Ves.  Sr.  505  ;  Dangars  v.  Rivaz,  28  Beav.  233. 
Att'y-Gen'l  v.  Middleton,  Id.  327  ;  Att'y-  '^  St.  John's  College  v.  Todington,  1 
Gen'l  V.  Lubbock,  1  C.  P.  Coop.  15  ;  Att'y-  Burr.  159,  2>cr  Lord  Mansfield,  p.  199. 
Gen'l  V.  Browne's  Hospital,  17  Sim.  137  ;  ^  Murdock,  Appellant,  7  Pick.  303  ; 
Att'y-Gen'l  v.  Di.Kie,  13  Ves.  519  ;  Att'y-  also  Murdock  v.  Phillips  Academy,  12 
Gen'l  u,  Magdalen  Coll.,  10  Beav.  402;  Pick.  244,  construing  stat.  of  1823,  ch.  50, 
Att'y-Gen'l  v.  St.  Cross  Hospital,  17  Beav.  passed  January   17,  1S24. 


CORPORATIONS.  389 

pleasure  of  the  trustees.  Under  such  circumstances,  the  power 
of  visitation,  being  vested  in  the  trustees,  consists  principally  in 
supervising  the  conduct  of  their  own  officers  or  employees,  in  lay- 
ing down  rules  for  their  action,  in  accordance  with  any  statutes 
of  the  founder.  As  visitors,  their  action  would  be  final  in  the  same 
way  as  in  England.  The  funds  are  administered  by  the  trustees 
subject  to  the  supervisory  power  of  the  court.  Where  a  new 
professorship  or  scholarship  is  founded,  it  is  the  duty  of  the 
trustees  to  apply  the  funds  as  pointed  out  by  the  founder,  in  con- 
formity with  the  original  foundation.  If  there  be  no  such  regu- 
lations prescribed  by  him,  a  general  gift  may  be  devoted  to  the 
general  purposes  of  the  institution.^ 

Section  V.  Judicial  Control  of  Corporations.  —  Although 
"  visitation"  in  its  technical  sense  has  no  application  to  business 
corporations,  still  they  are  liable  to  judicial  control  in  case  of 
abuse  of  power.  In  this  class  of  cases  there  are  specific  remedies, 
such  as  a  quo  tvarranto,  an  information  in  the  nature  of  a  quo 
ivarranto,  or  a  writ  of  scire  facias.  When  a  corporation  refuses 
to  act,  a  mandamus  may  be  resorted  to.  For  abuse  of  trust,  the 
courts  of  equity  may  give  redress.  Remedies  of  the  first  class 
are  obtained  in  a  court  of  law,  and  are  sometimes  termed  "  pre- 
rogative writs,"  as  being  set  in  motion  by  the  sovereign  power  in 
the  State. 

/Scire  facias  is  a  term  derived  from  the  words  used  at  the  com- 
mencement of  the  old  writ  in  Latin.  It  may  be  resorted  to  either 
where  there  is  an  original  defect  in  the  charter,  as  where  it 
was  obtained  by  fraud,  or  where  a  legal  corporation,  in  full  pos- 
session of  powers,  abuses  them  ;  a  quo  icarranto  is  i)roperly 
resorted  to  where  the  corporation  is  imperfectly  organized,  but 
nevertheless  continues  to  act  as  a  corporation.^  This  writ  is 
quite  technical  in  its  form,  and  in  modern  times  tiie  practice  is  to 
resort  to  an"  information  in  the  nature  of  a  quo  ivnrranto'^^  whicli 
is  much  simpler.^  The  main  object  of  the  proceeding  is  to  try  the 
right  of  the  corporation  to  exercise  the  powers  which  it  claims ; 

1  The  foundation  of  Girard  College  in  ^  ^n  information  is  an  accusation  ex- 
Philadelphia  is  an  instance  where  detailed  hibited  against  a  person  for  a  criminal 
rules  are  prescribed  by  the  founder.  These  otlence.  It  differs  from  an  indictment 
are  in  part  set  forth  in  the  report  of  the  which  is  found  by  a  grand  jury  in  that  it 
case  in  the  Supreme  Court  of  the  United  is  only  the  allegation  of  the  party  who 
States,  where  various  questions  concerning  files  it,  e.  g.,  the  attorney-general.  It  is 
the  foundation  were  litigated.  The  City  allowable  in  this  class  of  cases  on  the 
of  Philadelphia  was  made  trustee  and  ground  that  the  usurpation  of  power  is  in 
visitor.  Vidal  v.  Girard's  Executors,  2  the  nature  of  a  criminal  offence.  Leave  of 
How.  U.   S.   127,  129-136.  the  court   to  file  it   must  in  general  be 

2  Grant  on  Corporations,  296.  obtained. 


390  THE    LAW    OF    PERSONS. 

and  if  it  appear  to  have  no  right,  then  to  declare  the  result,  which 
may  be  the  forfeiture  of  the  charter. 

In  many  of  the  States  these  proceedings  are  regulated  by  codes 
of  procedure.  The  substance  of  the  remedies  referred  to  is  re- 
tained, but  the  methods  are  simplified. ^  There  are  other  remedies 
to  enforce  a  claim  against  a  corporation,  which  may  result  in  its 
dissolution.     These  will  be  considered  hereafter. 

Remedies  also  exist  against  the  officers  of  a  corporation  for  mal- 
feasance in  office  for  abuse  of  trust  as  well  as  for  misleading  third 
persons  who  may  be  induced  to  trust  the  corporation  or  perhaps 
to  purchase  its  stock  or  other  property  by  reason  of  fraudulent 
representations.  This  topic  is  of  especial  importance  in  the  case 
of  stock  corporations.  A  large  part  of  the  business  of  such  cor- 
porations is  managed  by  boards  of  managers,  directors,  or  trus- 
tees. To  them  great  pecuniary  interests  are  frequently  confided, 
which  are  not  infrequently  abused.  Independent  of  statute,  the 
remedies  to  be  sought  by  the  owners  of  the  funds  will  be  those 
applied  by  general  rules  of  law  to  defaulting  trustees.  Creditors 
may  also  have  a  standing  in  court  to  consider  the  funds  as  held 
iti  trust  for  the  payment  of  their  claims,  in  which  case  the 
directors,  etc.,  may  be  held  personally  accountable  to  them.  It 
is  a  general  principle  of  law  that,  if  the  directors  exercise  their 
functions  for  the  purpose  of  injuring  the  corporate  interests,  they 
are  personally  liable  for  any  loss  sustained.^ 

In  the  discussion  of  this  subject  it  is  necessary  to  consider  the 
relation  of  corporate  trustees  or  directors  towards  the  corpora- 
tion, their  position  towards  third  persons,  the  rights  of  third 
persons  against  the  corporation  for  the  misconduct  of  its  trustees 
or  directors,  and  finally  the  remedies  existing  in  favor  of  the  cor- 
poration against  its  trustees  or  directors  for  their  negligent  or 
wilful  misconduct. 

(1)  The  relation  of  corporate  trustees  to  the  corporation. — 
There  are  two  aspects  in  which  the  relation  of  directors  and  trus- 
tees to  the  corporation  may  be  regarded  :  one  is,  that  of  agents, 
and  the  other  that  of  strict  trustees.  Their  duties  in  the  charac- 
ter of  agents  would  closely  resemble  those  of  other  agents,  and 
would  be  governed  by  the  general  rules  of  the  law  of  agency.  It  is 
a  settled  rule,  that  if  they  exercise  their  functions  for  the  purpose 
of  injuring  the  corporate  interests,  they  are  personally  liable.^ 

'  See   New  York  Code  of    Civil    Pro-  by  tlie  regents  of  the  university  or  by  act 

cedure,  §§  1797-1803.     These  sections  do  of  the  legislature,  nor  to  a  municipal  or 

not    apply    to    an    incorporated     library  other  political  corporation.     §  1804. 
society,  nor  to  a  religious  corporation,  nor  2  Att'y-Gen'l  i;. Wilson,  1  Cr.  &  Ph.  1. 

to  a  select  school  or  academy  incorporated  ^  Id. 


COEPORA-TIOXS.  391 

In  order  to  be  regarded  as  strict  trustees,  they  must  have  the  title 
to  the  property.  In  such  a  case,  their  Hability  could  only  be  en- 
forced in  equity  at  the  suit  of  the  corporation  or  others  represent- 
ing it,  e.g.,  a  receiver.  Special  and  summary  remedies  are  some- 
times provided  by  statute,  as  where  an  officer  will  not  surrender 
documents  or  pay  over  moneys  to  the  corporation.  Such  reme- 
dies are  usually  deemed  to  be  cumulative,  and  do  not  displace 
the  ordinary  right  of  action  for  breach  of  official  duty.i 

Referring  now  more  particularly  to  trading  corporations,  it  has 
been  held  to  be  a  great  and  broad  principle  of  justice,  applicable 
to  all  systems  of  law,  unless  there  be  evidence  to  the  contrary, 
that  the  governing  body  of  a  corporation  cannot  use  its  funds  for 
any  purpose  other  than  those  for  which  they  were  contributed. 
Any  powers  given  to  the  governors,  whether  by  statute  or  other- 
wise, are  to  be  construed  \i\th.  reference  to  this  principle.^ 

If  the  directors  use  the  funds  for  unauthorized  transactions,' 
they  cannot  retain  the  benefit  of  them  to  their  own  use,  unless 
with  the  consent  of  the  shareholders,  after  the  particulars  of  the 
transaction  have  been  fully  explained  to  them.^  A  director 
holds  fiduciary  relations  to  the  company,  and  in  any  transaction 
between  him  and  the  company,  is  bound  to  communicate  all  that 
knowledge  of  its  affairs  which  he  could  have  acquired  in  the  due 
discharge  of  his  duties.  If  he  buy  its  obligations  at  a  discount 
without  having  observed  this  rule,  he  cannot  enforce  them  in  full, 
but  can  only  claim  what  he  paid  for  them  with  interest*  (a) 
Directors  are  liable  for  losses  occasioned  by  gross  neglect.^  {b) 
This  rule  cannot  be  extended  to  cases  where  the  misfeasance  was 
committed  in  the  director's  absence  and  without  his  knowledge.*^  (c) 
Presence  at  a  meeting  of  the  directors  where  a  breach  of  trust  is 
committed  without  dissent  by  a  particular  director  is  deemed  to  be 
an  active  participation  by  him  in  such  breach  of  trust.^ 

1  Mayor,  &c.  of  Lichfield  v.  Simpson,         *  Ex  parte  Larking,  L.  R.  4   Ch.    D. 

8  Q.  B.  65.  566. 

2  Pickering  v.  Stephenson,  L.  R.  14  ^  Ova^rend  &  Gurney  Co.  v.  Gibb,  L.  R. 
Eq.  322.                                                                5  H.  L.  Gas.  480. 

3  General  Exch.  Bk,  v.  Homer,  L.  R.  ^  Land  Credit  Co.,  &c.  v.  Fermoy,  L. 

9  Eq.  480.  R.  5  Ch.  App.  763. 

7  Power  V.  O'Connor,  19  W.  R.  923. 


(a)  Bulkley  v.  "Whitcomb,  121  N.  Y.  corporation  against  its  ofTicers  to  recover 

107.  damages  caused  by  mere  error  of  ju<lgiiient 

{h)  Hun  V.  Gary,  82  N.  Y.  65  ;  Wallace  is  not  maintainable.     Holmes  v.  Willard, 

V.  Lincoln  Savings  Bank,  89  Tenn.  630 ;  125  N.  Y.  75. 

BrinckerhofT  v.   Bostwick,  88  N.  Y.  52  ;  (c)  Movius  v.  Lee,  30  Fed.  R.  208.     Cf. 

Marshall  v.  F.  &  M.  Savings  Bank  of  Al-  Williams  v.  McKay,  46  N.  J.  Eq.  25. 
exandria,  85  Va.   676,     An   action   by  a 


392  THE   LAW  OF   PERSONS. 

(2)  The  position  of  the  trustees  or  directors  toivards  third  per- 
sons. —  Directors  may  make  themselves  liable  to  third  persons 
by  any  words  or  acts  on  their  part  which  constitute  a  contract  by 
them.  For  example,  they  may  sign  notes  which  in  legal  view  pur- 
port to  bind  themselves  instead  of  the  corporation.^  So  they  may 
warrant  to  third  persons  that  a  particular  person  has  authority  to 
act  as  agent  for  the  company,  when  he  has  no  such  authority .2  A 
representation  to  that  effect  which  turns  out  to  be  untrue  would 
be  construed  to  be  such  a  warranty.  This  principle  cannot  be 
extended  to  a  statement  as  to  a  rule  of  law.  A  person  cannot  be 
supposed  to  warrant  what  the  rule  of  law  is  concerning  a  particu- 
lar transaction.  It  follows  that  a  letter  signed  by  directors  and 
addressed  to  a  bank,  requesting  it  to  honor  checks  when  drawn  in 
a  particular  manner,  is  not  a  representation  that  the  directors  had 
any  authority  to  overdraw  the  account  of  the  company,  nor  does 
it  import  any  undertaking  that  the  directors  would  be  personally 
liable,  if  the  bank  did  not  pay  the  checks.^  The  directors  may 
be  liable  to  a  third  person  for  the  publication  of  false  reports 
whereby  the  latter,  relying  upon  them,  sustains  injury,  —  as  if, 
for  example,  he  had  become  a  stockholder  in  reliance  upon 
the  statements.*  Where  the  directors  make  an  erroneous  state- 
ment of  profits,  but  without  bad  intent,  they  will  not  in  general 
be  liable.^ 

Questions  of  this  kind  frequently  arise  in  connection  with  the 
publication  of  a  prospectus  stating  the  organization  and  prospects 
of  some  new  adventure.  The  general  rule  is,  that  no  material 
mis-statement  or  even  concealment  is  proper.  The  public  should 
have  the  same  opportunity  of  judging  of  evei-ything  material 
which  the  projectors  of  the  undertaking  themselves  possess.^  {a) 
The  great  object  of  a  prospectus  is  to  invite  original  shareholders 
to  unite  themselves  with  the  proposed  undertaking.  If  such  a 
shareholder  is  misled  to  his  injury  by  the  fraudulent  statements  of 
the  directors,  he  has  his  right  of  action.  This  doctrine  cannot  be 
extended  to  one  who  purchases  shares  from  the  original  subscriber, 
there  being  no  direct  connection  between  such  a  person  and  the 

1  Datton  V.  Marsh,  L.  E.  6  Q.  B.  361.  453  ;    Cullen    v.    Thomson's  Trustees,   4 

2  Cherry  V.  Colonial  Bk.  of  Australasia,  Macq.  H.  L.  Cas.  424,  440.  See  also 
38  L.  J.  (P.  C.)  49.  Davidson  v.  Tulloch,  3  Id.  783. 

3  Beattie  v.  Lord  Ebury,  L.  R.  7  Ch.  ^  Jackson  v.  Turquand,  L.  R.  4  H.  L. 
App.  777  ;  on  appeal,  L.  R.  7  H.  L.  Cas.  Cas.  305. 

102.  6  Cent.  Ry.  Co.  of  Venezuela  v.  Kisch, 

4  Clarke  v.   Dickson,    6   C.    B.   n.   s.     L.  R.  2  H.  L.  Cas.  99. 


{a)  Cf.  Brewster  v.  Hatch,   122  N.  Y.     Arnison  v.  Smith,  L.  R.  41  Ch.   D.  348; 
349  ;  Morgan  v.  Skiddy,  62  N.  Y.  319  ;     Knox  v.  Haynian,  67  L.  T.  N.  s.  137. 


CORPOKATIONS.  393 

signers  of  the  fraudulent  prospectus.^  If  tlie  directors,  in  making 
the  statements  in  question,  act  in  good  faith,  they  will  not  be 
liable.  The  cause  of  action  is  grounded  upon  deceit.  It  is  a  per- 
sonal action,  and  if  tlie  director  die  without  having  been  charged, 
his  executors  are  not  liable,  unless  the  estate  of  the  deceased  had 
been  benefited  by  the  deceit.^ 

Instead  of  positive  false  statements  the  directors  may  fraudu- 
lently conceal  facts  which,  if  they  had  been  known,  would  have 
influenced  a  subscriber  to  the  stock  in  making  a  subscription.  It 
is  very  doubtful  whether  an  action  will  lie  in  that  case.  There  are 
but  few  cases  in  which  concealment  will  be  construed  to  be  fraudu- 
lent. It  is  certainly  so  in  some  special  contracts,  such  as  insur- 
ance or  suretyship  ;  but  in  ordinary  cases,  one  party  may  lawfully 
refrain  from  disclosure.^  (a)  The  principles  to  be  followed  in 
disposing  of  a  case  of  this  kind  are  those  which  are  applicable  to 
an  ordinary  action  for  damages  for  deceit.^  Where  tlie  statement 
is  capable  of  two  senses,  one  of  which  is  true  and  the  other  un- 
true, it  will  lie  with  the  plaintiff  to  show  that  he  took  it  and  acted 
upon  it  in  the  sense  in  which  it  was  untrue.^  It  will  not  be  neces- 
sary to  show  that  he  acted  solely  on  the  untrue  statement.  It  will 
be  sufficient  if  that  were  material  and  influenced  his  conduct.^ 
The  statement  must  be  known  by  the  defendant  to  be  false,  or  he 
must  have  had  no  reasonable  ground  for  believing  it  to  be  true.'(/j) 
The  case  of  Peek  v.  Derry  cited  in  the  note  contains  a  thorough 
exposition  of  this  subject,  particularly  as  to  the  point  whether  a 
statement  made  by  a  person  Avho  has  no  reasonable  ground  to 
believe  it  to  be  true  is  a  fraud.^  (c) 

1  Peek  V.  Gurney,  L.  R.  13  Eq.  79;  c.  131,  §  38,  requires  disclosure  in  certain 
on  appeal,  L.  R.  6  H.  L.  Cas.  377.  The  specified  cases.  This  statute  was  intended 
point  is  decided  in  the  appellate  court,  for  the  protection  of  shareholders,  not  for 
pp.  396-400,  per  Lord  Chelmsford,  and  bondholders,  etc.  Cornell  v.  Hay,  L.  K. 
pp.  410-413,  i^er  Lord  Cairns.   The  cases  8  C.  P.  328. 

of  Bagshaw  v.   Se3-mour,   18    C.   B.   903,  *  Arkwright  v.  Newbold,  L.  I\.  17  Ch. 

and  Bedford  v.  Bagshaw,  4  H.  &  N.  538,  D.  301. 

allowing   the   assignee   of  shares  to  sue,  ^  Smith  v.  Chadwick,  L.  R.  9  App.  Cas. 

were  overruled.  187. 

2  Peekw.  Gurney,  L.R.  6  H.L.  Cas.  377.  «  Edgington  v.  Fitzmaurice,  L.  R.   29 

3  The  rule  is  stated  in  this  way  by  Lord  Ch.  D.  459. 

Cairns.     Mere  non-disclosure  of  facts,  un-  "  Peek  v.  Derry,  37  Id.  541. 

less  such  non-disclosure  have  the  effect  of  ^  peek  v.  Derry,  supra.     See  opinion 

making  the  disclosed  facts  absolutely  false,  of  Cotton,  L.  .T.,  pp.  567,  568.     Also  of 

will  not  suffice.     L.  R.  6  H.  L.  Cas.  403.  Hannen,  J.,  p.  578,  and  ol  Lopes,  L.  J., 

The  English  statute  of  1867,  30  &  31  Vict.  585. 


(a)  Crowell  v.  Jackson,  53  K.  J.  Law,  (r.)  This  case  was  reversed   on  appeal 

656.  (Derry  v.  Peek,  L.  R.  14  App.  Ciis.  337), 

(J>)  See  Cole  v.  Cassid}-,  138  Mass.  437 ;  and  the  view  taken  that  a  false  .statement 

Hubbard  t>.  Weare,  79  la.  678;  Chatham  made    carelessly  and  ^\ithout    reasonable 

Furnace  Co.  v.  Moffatt,  147  Mass.  403.  grounds  for  belief  in  its  truth  did  not,  if 


304  THE   LAW   OF   PERSONS. 

Care  must  be  taken  in  appljing  these  rules  not  to  confound  an 
expression  of  opinion  with  a  statement  of  facts,  (a)  There  is  a 
vast  difference  between  words  expressing  the  strongest  confidence 
tliat  a  specified  enterprise  will  be  successful,  and  an  assertion 
that  profits  in  a  commercial  sense  had  actually  been  made. 
It  should  also  be  considered  whether  a  person  is  likely  through 
inexperience  to  bo  misled  by  the  prospectus.^  Where  the  language 
of  the  prospectus  has  a  plain  and  clear  meaning,  it  must  be  con- 
strued by  the  judge,  and  not  by  the  jury.^ 

(3)  The  rights  of  third  persons  against  the  corjjoration  for  the 
misconduct  of  its  trustees  or  directors.  — The  party  injured  may, 
in  certain  cases,  look  to  the  corporation  instead  of  the  directors. 
As  they  may  be  agents  for  the  company,  their  acts  of  a  wrongful 
or  injurious  nature  may  bind  the  corporation,  on  accepted  rules 
of  the  law  of  agency.^  If  the  corporation  had  profited  by  the 
fraudulent  acts  of  the  directors,  this  participation  in  the  results 
of  the  wrong  might  amount  to  a  confirmation  of  their  acts.  (5) 

In  the  case  now  in  hand  of  fraudulent  prospectuses,  the  injured 
party,  instead  of  proceeding  against  the  directors,  may  prefer  to 
rescind  the  contract.  This  is  an  accepted  remedy  by  one  who 
has  been  fraudulently  induced  to  subscribe  to  original  shares. 
The  action  would  be  brought  against  the  company  instead  of  the 
directors,  (c)     The  contract  to  purchase  in  such  a  case  is  void- 

1  Bellairs  v.  Tucker,  L.  R.  13  Q.  B.  D.  3  Barwick  v.  English  Joint-Stock  Bank, 
562,  577,  and  cases  on  the  last-named  page.  L.  R.  2  Exch.  259,  is  a  leading  case,  and 

2  Moore  v.  The  Explosives  Co.,  56  L.  J.  frequently  cited  in  later  cases.  See 
(Q.  B. )  235.  opinion  of  Willes,  J. 

believed  in  good  faith  to  be  true,  amount  believing  them  to  be  so,  or  unless  the  im- 

to  fraud,  tliough  it  might  be  evidence  of  it.  pression  was  intentionally  conveyed  by  the 

This  decision  is  followed  in  Glasieri).  Rolls,  jierson   making    the    representation    that 

L.  R.  42  Ch.  D.  436,  and  Angus  v.  Clifford  he  had  actual  knowledge  of  their  truth, 

[1891],  2  Ch.  449,  and  seems  to  have  led  though   conscious  he  had  none.     See  also 

to  the  passage  of  the  statute  known  as  the  Robertson  v.  Parks,  76  Md.  118. 
Directors' Liability  Act,  1890  (53  &  54  Vict.  (a)  Robertson  v.  Parks,  supra. 

c.  64),  establishing  the  liability  of  direc-  (b)  See    Bosley    v.   Kational   Machine 

tors  and  jiromoters  for  untrue  statements  Co.,  123  N.  Y.  550. 

made  in  prospectuses,    etc.,   unless    such  (c)  Bosley  v.   National  Machine   Co., 

statements,  not  purporting  to  be  made  on  swp?-«  ;  Vail  v.  Reynolds,  118  N.  Y.  297  ; 

the  authority  of  an  expert  or  of  a  public  Scott     v.    Snyder     Dynamite     Projectile 

ofiicial  document  or  statement,  are  made  Company,   Limited,  67  L.  T.  N.  s..  104  ; 

under   the  belief  that  they  are  true,  for  Karberg's  Case  [1892],  3  Ch.  D.  1.    It  has 

which  belief  there  must  have  been  reason-  been  held  that  several  subscribers,  induced 

able   grounds.     The  doctrine  maintained  by   the   same  fraudulent   representations, 

in  Derry  v.  Peek  is  criticised  by  Sir  Fred-  have  such   a  common   interest  that   they 

erick  Pollock  in  5  Law  Quarterly  Review,  may  join  in  an  action   as  co-complainants 

p.    410    (Oct.    1889).      Cf.   Wakeman    v.  to  set  aside  their  subscriptions.      Bosher 

Dalley,  51  N.  Y.  27,  where  it  is  said  that  v.  R.  &  H.  Land  Co.,  89  Va.  455.     Cook 

an  action  of  deceit  cannot  be  maintained  on  Stock  and  Stockholders  and  Corpora- 

unless  the  representations  were  known  to  tion  Law,  §  156. 
be  false,  or  unless  there  were  reasons  for 


COEPORATIONS,  395 

able,  and  not  void.i  The  injured  party  should,  within  a  reason- 
able time,  strive  to  ascertain  the  facts,  and  after  ascertaining 
them,  proceed  without  delay .^ 

In  the  English  cases  there  is  a  feature  of  great  importance,  not 
usually  found  here,  and  which  makes  the  decisions  to  some  extent 
inapplicable.  This  is  the  principle  of  unlimited  Uabilitt/  on  the 
part  of  the  shareliolders  of  many  corporations  for  the  debts  of 
the  company.  The  legal  effect  of  this  rule  is,  that  a  share- 
holder is  deemed  to  be  a  partner  with  the  other  shareholders. 
Accordingly,  he  cannot  sue  the  company  for  damages  for  fraud, 
that  remedy  not  being  available  as  between  partners.^  This  point 
received  thorough  consideration  in  the  great  case  of  the  failure 
of  the  City  of  Glasgow  Bank  in  1878.  In  American  law,  the 
shareholder,  in  general,  is  not  liable  beyond  the  capital  con- 
tributed by  him,  though  he  may  be  in  special  cases.  Where  he 
is  not  so  liable,  he  may,  for  the  purposes  of  an  action  against  the 
company,  be  regarded  as  a  stranger.  Under  the  English  theory, 
"  such  an  action  (deceit)  is  realli/  not  against  the  corporation  as 
an  aggregate  hody,  but  is  against  all  the  members  but  one,"  viz., 
the  plaintiff,  to  throw  upon  them  the  plaintiff's  share  of  the  cor- 
porate liabilities.*  One  defrauded  in  subscription  to  stock  by  the 
company  is  accordingly  restricted  to  an  action  to  rescind  the  sub- 
scription. This  proceeds  upon  the  ground  that  tlie  fraud  so 
vitiated  the  contract  that  the  subscriber  is  entitled  to  claim,  if  he 
will,  that  there  was  no  subscription.  But  the  right  to  rescind 
may  be  lost  if  the  rights  of  innocent  third  parties  have  intervened.^ 
The  defrauded  subscriber  may  thus  be  bereft  of  all  remedy. 

In  some  of  the  States,  if  a  bank  become  insolvent,  the  share- 
holder may  not  only  lose  his  share,  but  be  liable  in  addition  to  an 
amount  equal  to  the  share.  This  rule  is  applied  to  national 
banks.  The  same  question  might  apparently  then  arise  as  was 
presented  in  Houldsworth  v.  City  of  Glasgow  Bank  ;  that  is, 
whether  one  who  had  been  induced  by  fraud  to  subscribe  would 
have  an  action  against  tlie  company,  or  whether  he  could  resist, 
by  means  of  rescission,  his  contribution  to  the  fund  to  pay  credi- 
tors. There  is  no  reason  to  doubt  that  while  the  corporation 
is  carrying  on  business  ("  a  going  concern ")  and  apparently 
solvent,  the  shareholder  may  sell  his  share  and  so  escape  further 
liability.^ 

1  Oakes  v.  Turquand,  L.  R.  2  H.  L.  *  Per  Lord  Selborxe,  in  Houldsworth 
Cas.  325.  V.  City  of  Glasgow  Bank,  supra,  p.  329. 

2  Wilkinson's  Case,  L.  E.  2  Ch.  App.  &  Tennent  v.  City  of  Glasgow  Bank, 
536.  L.  R.  4  App.  Cas.  615. 

»  Houldsworth     v.    City   of     Glasgow  ^  Tennent   v.   City  of  Glasgow   Bank, 

Bank,  L.  R.  5  App.  Cas.  317.  supra,  p.  622. 


396  THE    LAW    OF   PERSONS. 

(4)  Remedies  whieh  the  corporation  may  have  against  its 
directors  for  their  negligent  or  tvilful  miscotiduct.  —  The  corpo- 
ration, having  been  made  liable  by  the  fraud  and  other  acts  of 
misconduct  of  the  directors,  may  have  a  remedy  against  them. 
The  stockholders  of  a  corporation  may,  at  least  in  some  cases, 
ratify  the  act  of  a  director  though  guilty  of  a  breach  of  duty,  and 
such  a  director  may  vote  a  ratification  in  his  character  of  stock- 
holder, even  though  he  owns  a  majority  of  the  shares,  and  thus 
confirm  his  own  voidable  act  as  director,  where  he  does  not  act 
oppressively,  and  the  charter  permits  him  to  acquire  the  stock. ^ 

A  director  is  not  a  trustee,  in  the  technical  sense  of  that  word, 
unless  he  has  the  title  to  property.  He  is  as  between  himself  and 
the  company  an  agent  or  servant.'^  He  is  in  a  fiduciary  position, 
however,  and  cannot  profit  at  the  expense  of  the  corporation.^ 

The  wrongful  act  of  one  director,  committed  by  him  without 
the  knowledge  or  consent  of  his  associates,  is  not  to  be  imputed 
to  them,  but  is  personal*  If  a  director  be  excluded  from  acting 
as  such  by  his  associates,  he  is  entitled  to  an  injunction.^  The 
court,  having  jurisdiction  over  the  acts  of  trustees  and  directors, 
considered  as  a  matter  of  fiduciary  obligation  is  the  Court  of 
Chancery.^ 

In  New  York  the  whole  subject  is  reduced  to  statutory  form. 
The  court  may  compel  the  directors  to  account  for  their  official 
conduct,  and  to  pay  over  to  the  corporation  itself  or  to  its  credi- 
tors, as  the  circumstances  of  the  case  may  require,  any  property 
which  they  have  wrongfully  applied  to  their  own  use,  or  have 
wasted  in  any  manner.  At  the  same  time,  the  director  may  be 
suspended  from  office  for  abuse  of  trust,  or  he  may  be  removed. 
The  court  may  direct  the  proper  board  to  supply  the  vacancy, 
or  if  there  be  no  such  body  in  existence,  direct  the  removal  to 
be  reported  to  the  governor,  who  may,  with  the  consent  of  the 
Senate,  fill  the  vacancy.^  The  court  also  has  a  statutory  power 
to  set  aside  unlawful  transfers  of  the  corporate  property,  except 
as  against  purchasers  in  good  faith,  as  well  as  to  restrain  such 

1  Northwest  Transportation  Co.  v.  ^  McKay's  Case,  L.  R.  2  Ch.  D.  1  ; 
Beatty,   L.   E.   12  App.    Cas.  589.     The     Pearson's  Case,  5  Id.  336. 

court  said:  "Great   confusion  would   be  *  Cargill  v.  Bower,  47  L.  J.    (Ch.  D.) 

introduced  into  the  affairs  of  joint-stock  649  ;  Land  Credit  Co.  of  Ireland  v.  Lord 

companies  if  the  circumstances  of  share-  Fermoy,  L.  R.  5  Ch.  App.  763. 

holders  voting  in  that  character  at  general  ^  Pulbrook  v.  liichmond  Con.  Mining 

meetings  were  to  be  examined,  and  their  Co.,  L.  R.  9  Ch.  D.  610. 

votes  practically    nullified    if    they    also  6  Needham  i'.  Rivers  Pro.  &  Man.  Co., 

stood    in   some  fiduciary    relation   to  the  L.  R.  1  Ch.  D.  253. 

company."  p.  600.  ''  Code  of  Civ.  Pro.,  §  1781. 

2  Per  James,  L.  J.,  in  Smith  v.  Andei'- 
son,  L.  R.  15  Ch.  D.  247. 


COEPOKATIONS. 


397 


as  are  apprehended.  An  action  for  the  last-named  pui-poses 
may  be  brought  not  only  by  the  attorney-general,  but  as  well  by 
a  creditor  or  some  officer  of  the  corj)oration.i  (a) 

A  joint-stock  company,  wliose  directors  are  appointed  for  a 
definite  period,  has  no  inherent  power  to  remove  them  before  the 
expiration  of  that  period.^ 

There  are  other  restrictions  upon  directors.  An  important  one 
is,  that  they  shall  not  pay  dividends  upon  the  stock  of  the  com- 
pany except  from  profits.  All  who  participate  in  such  an  act  are 
made  liable  to  the  corporation  or  its  creditors  for  the  amount 
unlawfully  diverted  in  this  manner.  Independent  of  statute,  and 
on  general  principles  of  law,  it  is  contrary  to  the  duty  of  directors 
to  pay  dividends  out  of  capital.  Such  an  act  is  ultra  vires,  as  it 
diminishes  the  funds  on  which  creditors  have  a  right  to  rely.^ 
The  courts  hold  a  very  strict  hand  over  directors  in  thus  making 
them  jointly  and  severally  liable  for  the  amounts  paid.*  (J)) 

In  some  of  these  cases,  stress  was  laid  on  the  fact  that  in  the 
constituting  instruments,  division  of  profits  only  was  allowed. 
But  there  is  a  broader  view.  Persons  intrusted  with  capital 
with  a  view  of  using  it  to  make  profit,  violate  their  trust  when 
they  return  the  capital  to  shareholders  in  the  guise  of  profits,  and 


1  Code  of  Civ.  Pro.,  §§  1781-1782. 
These  rules  are  subject  to  some  exceptions 
in  the  case  of  religious  or  charitable  corpo- 
rations, §  1804. 

2  Imperial  Hyd.  Hot.  Co.  v.  Hanipson, 
L.  R.  23  Ch.  D.  1. 

3  ilacdougall  v.  Jersey  Imp.  Hotel  Co., 
2  Hem.  &  M.  528. 

*  In  re  Oxford  Ben.  Building  Society, 


(a)  Under  these  sections  the  attorney- 
general  may  bring  suit,  without  a  relator, 
and  whenever  in  his  opinion  the  public 
interest  demands  it,  to  remove  trustees 
from  office,  and  to  compel  them  to  account 
for  property  transferred  in  violation  of 
their  duty.  People  v.  Ballard,  134  N.  Y. 
269. 

(b)  It  is  a  general  rule  that  stock- 
holders cannot  in  the  first  instance  sue 
the  directors  for  a  past  or  threatened 
breach  of  duty  to  the  corporation.  The 
corporation  is  the  proper  party  plaintiff, 
for  in  contemplation  of  law  it  alone  re- 
ceives the  injury.  In  case  the  corpora- 
tion has  been  dissolved,  or  is  being  wound 
up,  the  receiver  or  official  liquidator 
should  sue. 


L.  R.  35  Ch.  D.  502  ;  Leeds  Estate,  &c. 
Co.  V.  Shepherd,  L.  R.  36  Ch.  D.  7S7  ; 
Salisbury  v.  Metropolitan  R'way  Co.,  22 
L.  T.  N.  s.  839  ;  Ranee's  Case,  L.  R.  6 
Cli.  Aiip.  104  ;  Fiitcroft's  Case,  L.  R.  21 
Ch.  D.  519  ;  Evans  v.  Coventry,  8  De  G. 
M.  &  G.  835  ;  In  re  Nat.  Funds  Ass.  Co., 
L.  R.  10  Ch.  D.   118. 


If,  however,  a  proper  demand  that  suit 
be  brought  has  been  made  by  the  stock- 
holder, and  refused  by  the  governing  body 
of  the  corporation,  or  if  it  is  apparent  that 
such  a  demand  would  be  useless,  owing  to 
the  relation  of  the  guilty  officers  to  those 
in  control,  the  stockholder  may  then  bring 
suit  in  his  own  behalf  and  that  of  all  otlier 
stockholders  similarly  situated.  Greaves 
V.  Gouge,  69  N.  Y.  154;  Brinckerhoff  i-. 
Bostwick,  88  N.  Y.  52  ;  City  of  Chicago 
V.  Cameron,  120  111.  447  ;  Nathan  v. 
Tompkins,  82  Ala.  437  ;  Davis  v.  Gem- 
mell,  70  Md.  356  ;  Eschweiler  v.  Stow.-ll, 
78  Wis.  316  ;  Pomeroy  Eq.  Jur.  §§  1091, 
et  seq. 


398  THE   LAW   OF   PERSONS. 

thus  subvert  the  purposes  of  the  trust.  Such  an  act  manifestly 
requires  the  assent  of  the  shareliolders.  It  is  not  necessary  that 
the  directors  should  intend  to  commit  a  fraud.  It  is  enough  that 
they  intend  to  do  an  act  which  is  in  its  nature  substantially  a 
fraud.^  Moreover,  creditors  who  have  naturally  looked  to  the 
capital  as  a  source  from  which  their  claims  should  be  paid,  have 
a  right  to  insist  that  it  should  not  be  dissipated  by  a  direct  act  of 
abdication  of  the  trust  on  which  the  capital  is  held,  (a) 

Section  YI.  Dissolution. — A  corporation,  like  a  natural  per- 
son, may  cease  to  exist.  Its  existence  may  be  terminated  by  the 
death  of  its  members  without  filling  vacancies.  It  may  also  be 
dissolved  by  act  of  the  legislature,  or  by  a  surrender  of  corporate 
rights,  or  by  judicial  decree.  These  various  modes  will  now  be 
considered  separately. 

I.  £1/  death  or  removal  of  all  its  memlers. — This  is  a  disso- 
lution because  the  corporation  has  ceased  to  have  the  power  of 
holding  corporate  meetings  for  the  purpose  of  filling  vacancies 
and  so  continuing  its  existence.^  A  new  charter  may,  however, 
be  granted,  which  will  operate  as  a  revival  of  the  former  corpora- 
tion, so  that  the  new  corporation  will  become  the  owner  of  all  the 
former  franchises  and  property.^  A  similar  effect,  suspending 
the  existence  of  the  corporation,  might  be  produced  if  so  many 
of  the  members  should  die  or  be  removed  from  office  that  there 
would  not  be  a  sufficient  number  to  hold  a  legal  meeting.  This 
obstacle  could  be  removed  by  an  act  of  the  legislature  authorizing 
a  lesser  number  to  form  a  quorum  and  fill  the  vacancies. 

II.  By  act  of  the  legislature.  —  This  mode  of  dissolution  has 
a  wide  scope  in  England,  as  an  act  of  Parliament  is  said  to  be 
boundless  in  its  operations,  although  in  general  it  would  be  deemed 
unjust  and  impolitic  there  to  dissolve  a  corporation  without  good 
reason.  In  the  United  States  a  constitutional  question  is  in- 
volved, owing  to  the  provision  in  the  United  States  Constitution 
that  no  State  shall  pass  any  law  impairing  the  obligation  of 
contracts.* 

In  applying  this  rule  to  cases  as  they  arise,  a  distinction  must 
be  taken  between  a  public  or  municipal  and  a  private  corporation. 
A  municipal  corporation  is  in  its  essence  a  mere  instrument  of 
local  government.     Its  charter  may  accordingly  be  altered  at  the 

1  Ranee's  Case,  opinions  of  James  and  2  -p,ex  v.  Moms,  3  East,  213. 

Mellish,  L.JJ.,L.R.  6  Ch.App.  113-124.  3  Mayor,  &c.  of  Colchester  v.  Brooke, 

Also  Remarks  of  the  blaster  of  the  Rolls,  in  7  Q.  B.  339. 
L.R.  10  Ch.  D.  118,  128  ;  approved  in  35  *  Art.  I.,  §  10,  cl.  1. 

Id.  502,  512. 

(a)  See^josi,  pp.405,  411,  412. 


COEPOKATIOXS.  399 

pleasure  of  the  supreme  authority  in  the  State,  though  it  might 
be  that  its  property  should  continue  to  be  appropriated  to  pubhc 
uses. 

The  case  is  very  different  with  private  corporations.  The  acts 
of  incorporation  and  acceptance  constitute  a  contract  between  the 
State  and  the  corporators.  This  cannot  be  destroyed  nor  altered 
by  the  legislature,  unless  there  be  a  special  power  to  that  effect 
reserved  by  the  State,  —  a  case  to  be  hereafter  considered.  It  is 
not  material  that  no  money  is  paid  by  the  corporators  for  the 
charter,  nor  that  the  trustees  receive  no  pecuniary  benefits.  It 
is  enough  that  the  persons  whom  the  trustees  represent  may  derive 
a  benefit  from  it. 

These  principles  are  fully  set  forth  in  the  celebrated  "  Dart- 
mouth College  Case."  i  The  college  had  been  chartered  by  the 
King  of  England  during  the  colonial  period.  It  was  placed  by 
him  under  the  control  of  a  board  of  trustees  having  self-perpetu- 
ating power.  After  the  Revolution,  the  State  of  New  Hampshire 
attempted  to  subvert  the  old  organization  by  a  statute  which  the 
college  did  not  accept.  This  act  was  declared  by  the  court  to  be 
unconstitutional  and  void.  This  decision  met  with  much  oppo- 
sition, it  being  maintained  by  some  of  the  State  tribunals  that  an 
act  of  incorporation  ought  to  be  deemed  a  laii\  and  so  in  its 
nature  repealable,  rather  than  a  contract  and  for  that  reason 
irrepealable.  The  answer  to  this  view  made  by  Mr.  Mason  in  his 
argument  for  the  college  seems  very  strong.  If  this  be  a  late, 
where  is  the  necessity  or  propriety  of  acceptance  of  it  by  the 
corporators  ?  Must  a  law,  after  it  is  duly  enacted,  be  accepted 
or  assented  to  by  an  individual  in  order  to  make  it  binding  on 
him  ?  2 

After  the  decision  of  the  Dartmouth  College  Case  a  practice 
grew  up  to  the  following  effect :  Either  to  insert  in  the  charter 
of  incorporation  a  clause  giving  the  legislature  full  power  of 
amendment  or  repeal,  or  to  enact  a  general  law  of  the  State 
applicable  to  all  future  incorporations,  or,  for  still  greater  cau- 
tion, to  insert  a  similar  clause  in  the  State  constitution.^  Such 
a  clause  forms  a  part  of  the  contract  between  the  legislature  and 
the  corporation,  and  subjects  the  charter  to  amendment  or  repeal 
at  the  will  of  the  legislature.*  Even  with  this  reservation  of 
such  power,  an  arbitrary  repeal  of   a  charter,  interfering  u'ith 

1  Dartmouth  College  v.  Woodward,  4  *  Peik  v.  Chicago  &  X.  W.  R.  R.  Co., 
Wheat.  518.  94  U.  S,  164  ;  C.   B.  &  Q.  R.  R.  Co.  v. 

2  Dartmouth  College  Case,  as  separately  Iowa,  Id.  155;  Schenectady,  &c.  Plank 
printed,  p.  68.  Road  Co.  v.  Thatcher,  11  N.  Y.  102,  108, 

8  See,  for  an  illustration,  Constitution     109. 
of  N.  Y..  Art.  VIII.,  sect.  1  (last  clause). 


400  THE   LAW   OF   PERSONS. 

rights  of  property^  would  be  unreasonable  and  unjust  and  contrary 
to  the  constitutional  safeguards  for  the  protection  of  such  rights. 

III.  Surrender  of  corporate  rights.  —  A  corporation  may  be 
dissolved  by  surrender,  assuming  that  the  surrender  is  accepted 
by  the  State.  If  a  charter  is  to  be  treated  as  a  contract,  the  cor- 
poration has  duties  as  well  as  rights.  It  cannot  by  its  own  fiat 
dissolve  the  contract.  So  a  corporation  may  surrender  its  charter 
by  implication,  as,  for  example,  where  a  new  charter  is  accepted 
inconsistent  with  its  then  existing  incorporation.^ 

IV.  By  adverse  judicial  decree.  —  (1)  Under  the  common 
law.  The  proceeding  for  this  purpose  is  a  writ  of  scire  facias 
or  an  information  in  the  nature  of  a  quo  ivarranto.,  already 
explained.  Sufficient  cause  for  the  proceeding  is  either  the 
usurpation  of  a  right  or  power, —  e.  </.,  when  a  literary  college 
at  Geneva,  N.  Y.,  assumed,  without  legal  ground,  to  establish 
a  medical  college  in  the  city  of  New  York  ;  ^  suffering  an  act 
to  be  done  which  defeats  the  end  for  which  the  corporation  was 
instituted ;  ^  acts  of  neglect  causing  injury,  such  as  that  of  a 
turnpike  company  permitting  its  road  to  fall  into  such  a  state 
of  decay  as  to  be  dangerous  or  inconvenient  to  travellers ;  ^ 
non-compliance  with  the  requirements  of  the  charter  by  neglect 
or  design,  even  though  there  be  no  bad  or  corrupt  motives.^ 
In  these  cases,  it  will  be  no  answer  to  the  proceeding  that  any 
person  injured  will  have  a  remedy  by  action. 

It  is  important  to  remark  that  a  violation  of  corporate  duty  or 
a  breach  of  the  charter  does  not  of  itself  dissolve  the  corporation. 
There  must  be  a  judicial  proceeding.  None  but  the  "  people," 
through  their  proper  officer,  can  claim  that  the  charter  is  for- 
feited. An  individual  cannot  set  up  the  forfeiture  as  a  defence  to 
an  action  brought  against  him  by  the  corporation  to  enforce  a 
legal  liability.  This  rule  applies  even  though  the  charter  provide 
that  on  the  performance  or  non-performance  of  an  act  the  cor- 
poration shall  be  ipso  facto  dissolved.  These  words  are  construed 
to  mean  dissolution  at  the  election  of  the  State  through  a  judicial 
proceeding,  (a) 

1  This  mode  of  dissolution  is  called  in  ^  The  People  v.  The  Trustees  of  Geneva 

the  statute-book  in  New  York  "voluntary  College,  5  Wend.  211  ;  and  see  People  v. 

dissolution,"  meaning  that  it  is  at  the  will  Utica  Ins.  Co.,  15  Johns.  358,  383. 

of  the  corporation,   but   still    under   the  ^  People  f.  Bank  of  Hudson,  6  Cow.  217. 

sanction  of  the  State  ;  Code  of  Civ.  Pro.  *  People  v.  Bristol,  &c.  Turnpike  Co., 

§§  2419-2431.      Certain  corporations  are  23  Wend.  222. 

excepted.     See  §§   2420,  2431.     See  also  &  People  v.  Kingston  &  M.  Turnpike 

2  R.  S.  467,  §§  66-89.  Road  Co.,  23  Wend.  193. 


(ft)  See  Application  of  Brooklyn  El.  Brooklyn,  78  N.  Y.  524  ;  Matter  of  Brook- 
Py.  Co.,  125  N.  Y.  434,  and  compare  lyn,  Wiufield,  &  Newtown  Ry.  Co.,  72 
Brooklyn   Steam  Transit  Co.   v.  City  of    N.  Y.  245. 


COKPOEATIONS. 


401 


Courts  of  equity  may  in  their  administration  of  the  law  of  trusts 
appropriate  the  property  of  insolvent  corporations  to  the  payment 
of  their  debts.  This  is  readily  done  through  the  medium  of  a 
receiver,  who  under  the  direction  of  the  court  will  bring  actions 
or  submit  to  be  sued,  collect  tlie  assets,  and  devote  them  to  the 
use  of  the  creditor.  This  may  result  practically  in  the  dissolution 
of  the  corporation. 

(2)  Dissolution  as  a  statutory  remedy.  In  the  great  mul- 
tiplication of  corporations  in  modern  times,  and  the  ease 
with  which  they  are  formed  under  general  laws,  it  will  readily 
happen  that  many  will  turn  out  to  be  formed  for  impracticable 
and  visionary  purposes,  or,  after  having  had  a  temporary  business 
success,  will  fail,  and  become  insolvent.  The  attention  of  legis- 
latures is  naturally  turned  to  methods  whereby  they  can  be 
summarily  dissolved  or  "wound  up,"  and  their  affairs  finally 
settled. 

A  marked  instance  of  this  mode  of  proceeding  is  "  The  Com- 
panies Winding  up  Acts  "  of  the  English  Parliament.^ 


1  25  &  26  Vict,  c.  89,  called  "The 
Companies  Act  of  1862,"  with  amendatory 
acts.  The  powers  and  liabilities  of  com- 
panies under  this  act  depend  both  upon 
the  articles  of  association  among  the  mem- 
bers and  the  provisions  of  the  Act  of 
Parliament  incorporating  them.  Re  Cam- 
brian Peat,  Fuel,  &  Charcoal  Company, 
Limited,  31  L.  T.  773.  The  company  is 
required  to  be  registered  under  a  name  iu 
a  prescribed  way,  whereupon  it  obtains  a 
certificate  from  the  registrar,  which  is 
conclusive,  so  that  its  incorporation  can- 
not be  successfully  impugned.  Oakes  v. 
Turquand,  L.  K.  2  H.  L.  Cas.  325  ;  Peel's 
Case,  L.  R.  2  Ch.  App.  674. 

Companies  under  this  act  may  be  in- 
corporated for  any  lawful  purpose.  §  6. 
Tlie  liability  of  members  may  be  limited 
at  the  pleasure  of  the  members,  so  that 
there  shall  be  no  liability  beyond  the 
shares  subscribed.  This  is  called  a  com- 
pany with  liability  "limited  by  shares." 
It  must  be  publicly  registered  in  a  pre- 
scribed registration  ofBce  with  the  word 
"limited  "  as  the  last  word  in  its  name. 
The  liability  of  members  may  be  "  lim- 
ited "  in  another  way,  which  is  to  fix  in 
the  articles  of  association  an  amount  in 
addition  to  their  shares  for  which  they  un- 
dertake to  be  liable.  This  is  called  a 
company  "limited  by  guarantee."  §  9. 
The  word   "limited"  in  this  case  must 


also  be  the  last  word  in  the  company's 
name,  and  there  must  be  a  registration  as 
prescribed  by  law.  Finally,  the  members 
may,  if  they  will,  be  organized  on  the  prin- 
ciple of  unlimited  personal  liability.  §  10. 
It  is  plain  that,  under  these  provisions, 
"the  winding  up"  of  the  various  cor- 
porations in  case  of  dissolution  will  have 
quite  a  different  meaning.  In  the  strictly 
limited  corporations,  the  shareholders  will 
only  contribute  in  case  they  have  not  paid 
up  their  original  subscriptions,  and  then 
only  to  the  extent  of  sums  not  yet  paid. 
In  the  other  cases,  the  shareholders 
will  be  requii'ed  to  contribute  in  addition 
whatever  their  articles  of  association  may 
provide  for.  Accordingly,  those  are  "con- 
tributories  "  to  the  payment  of  the  debts 
of  the  company  who  have  in  some  way 
bound  themselves  by  contract  either  di- 
rectly to  the  creditor  or  with  the  corpora- 
tion that  has  contracted  with  the  creditor. 
Bright  V.  Hutton,  3  H.  L.  Cas.  341. 
The  list  of  contributories  includes  all  who 
have  agreed  to  become  members,  and  not 
entitled  to  rescind  the  contract  on  the 
ground  of  fraud.  In  re  Scottish  Petro- 
leum Co.,  L.  R.  23  Ch.  D.  413.  The  sub- 
scriber is  bound  to  take  the  shares  he 
subscribed  for  and  to  pay  money  or 
money's  worth.  Forbes  &  Judd's  Case, 
L.  R.  5  Ch.  App.  270.  Persons  holding 
shares  as  trustees  mav  be  liable,  although 


26 


402 


THE   LAW    OF   PERSONS. 


There  is  also  important  legislation  on  the  same  general  subject 
in  the  State  of  New  York,  resembling  in  some  of  its  methods  the 
English  Winding  up  Act  of  1862,  and  amendatory  statutes.  There 
are  three  principal  cases  under  the  New  York  statutes:  — 

1.  A  majority  of  the  directors  may  petition  for  a  dissolution 
of  the  corporation  on  the  ground  that  its  property  is  not  sufficient 
to  pay  the  just  demands  against  it,  or  for  other  reasons  beneficial 
to  the  stockholders. 1  In  certain  specified  cases  there  may  be  a 
petition  by  those  in  favor  of  dissolution,  though  the  directors  are 
equally  divided  in  opinion.^  The  contents  of  the  petition  and  the 
mode  of  proceeding  under  it  are  specifically  marked  out.  The 
question  is  heard  before  the  court  or  a  referee.  If  the  facts  war- 
rant it,  an  order  is  entered  dissolving  the  corporation.  The 
assets  are  administered  by  a  receiver.  All  sales  or  transfers  after 
the  filing  of  the  petition,  or  judgments  confessed,  whether  to  pay 
or  secure  debts,  or  for  other  considerations,  are  void  as  against 
the  receiver  or  creditors.^ 


their  names  are  entered  on  the  share 
register  as  trustees.  Bell's  Case,  L.  K.  4 
App.  Cas.  547  ;  also  other  City  of  Glasgow 
Bank  Cases.  Past  shareholders  are  also 
liable  under  specified  circumstances.  Hel- 
bert  V.  Banner,  L.  R.  5  H.  L.  Cas.  28. 
The  corporation  having  been  "wound 
up,"  the  court  may  sanction  a  scheme  for 
reconstruction  and  the  transfer  of  remain- 
ing assets  to  a  newly-formed  company.  In 
re  Imperial  Mercantile  Association,  L.  R. 
12  Eq.  504. 

Other  companies  besides  those  formed 
lander  the  act  itself,  such  as  one  incor- 
porated by  special  Act  of  Parliament,  may 
be  "wound  up"  under  this  statute,  but 
not  a  company  wholly  unincorporated. 
Ill  re  Bradford  Nav.  Co.,  L.  R.  10  Eq. 
331  ;  Ee  Imperial  Anglo-German  B'k, 
26  L.  T.  229.  "Never  having  come  into 
existence,  it  cannot  be  wound  u])."  The 
general  grounds  for  "  winding  up "  are 
that  the  business  was  not  commenced 
promptly  or  that  the  object  of  the  organ- 
ization is  impracticable  or  impossible,  or 
that  it  is  insolvent.  There  may  also  be 
a  voluntary  application  by  shareholders. 
A  creditor  who  cannot  get  his  claim  paid 
is  in  general  entitled  to  a  winding  up  or- 
der, though  in  special   cases,  where   this 


proceeding  would  not  on  the  whole  be 
beneficial,  or  for  other  reasons,  the  order 
may  be  refused.  In  re  Heme  Bay  Water- 
works Co.,  L.  R.  10  Ch.  Div.  42.  Public 
interests  may  also  intervene  to  prevent  it. 
If  the  order  is  granted,  "  liquidators  "  are 
appointed  to  take  possession  of  the  assets, 
and  protect  them.  The  liquidator  is  in 
substance  a  statutory  receiver,  who  brings 
actions,  carries  on  the  business,  sells  prop- 
erty ;  and  the  order  may  be  so  drawn  that 
he  will  not  be  required  to  apply  to  the 
court  for  directions. 

The  details  of  the  law  are  very  nume- 
rous, and  the  decisions  extensive.  The 
whole  scheme  appears  to  be  in  the  nature 
of  a  special  act  of  bankruptcy  embracing 
corporations  and  appropriating  their  as- 
sets of  every  sort  to  the  payment  of  their 
debts,  with  the  additional  remedy  of  call- 
ing on  the  shareholders  in  certain  cases 
for  contribution  to  pay  the  company's 
debts.  («) 

1  Code  of  Civ.  Pro.,  §  2419. 

2  Id.  §  2420. 

3  Id.  §  2421-2431,  both  inclusive.  As 
to  the  receiver,  see  §  1810.  See  also  2  R. 
S.  467,  §§  66-89,  which  are  still  probably 
applicable  to  a  receiver  in  case  of  volun- 
tary dissolution. 


(a)  The    Companies   Act,    1862,    was  panies  Acts,   1862  to    1886,  are  cited  to- 
amended  and  supplemented  by  the  "Com-  gether  as  the  "Companies  Acts,  1862  to 
panies  (Winding  up)   Act,    1890,"    53  &  1890." 
54  Vict.  c.  63.     This  act  and  the  Com- 


CORPORATIONS.  403 

2.  There  are  several  cases  in  which  a  dissohition  may  be  had 
by  creditors  seeking  to  enforce  corporate  obligations,  as  where 
the  corporation  has  remained  insolvent  for  one  year,  or  neglected  or 
refused  for  a  year  to  pay  its  notes  or  other  evidences  of  debt,  or  sus- 
pended its  ordinary  and  lawful  business  for  one  year.  In  case  the 
corporation  has  banking  powers  or  power  to  make  loans  on  pledges 
or  deposits,  or  to  make  insurances,  there  may  be  an  application 
of  this  kind,  not  only  when  it  becomes  insolvent,  but  when  it  has 
violated  any  provision  of  law  binding  upon  it.  In  this  class  of 
cases  the  attorney-general  proceeds,  in  the  first  instance,  though 
if  he  omit  to  do  so  a  creditor  or  stockholder  may  take  proceed- 
ings which  will  enable  him,  with  the  leave  of  the  court,  to  proceed 
for  a  dissolution.  Stockholders  and  directors,  so  far  as  they  may 
be  made  personally  liable,  may  thereupon  be  joined  by  the  plain- 
tiff in  the  same  action,  or  may  be  proceeded  against  separately. 
The  dissolution  is  brought  about  substantially  in  the  same  way  as 
in  the  case  of  voluntary  dissolution.^ 

3.  Special  provisions  applicable  to  the  dissolution  of  particular 
kinds  of  corporations,  so  far  as  they  may  exist,  are  not  inter- 
fered with  by  the  general  methods  already  described.  The  details 
must  be  sought  in  the  respective  statutes. 

The  word  amahjamation  has  been  sometimes  used  in  con- 
nection with  the  dissolution  of  corporations,  and  should  be  ex- 
plained. "  Amalgamation  "  is  not  a  legal  word.  In  a  recent  case 
the  court  said  :  "  It  is  difficult  to  say  what  the  word  '  amalgamate  ' 
means.  I  confess  at  this  moment  I  have  not  the  least  conception 
of  what  the  full  legal  effect  of  the  word  is.  We  do  not  find  it  in 
any  law  dictionary,  or  expounded  by  any  competent  authority."  ^ 
It  may,  however,  be  assumed  to  mean  the  dissolution  of  one  or 
more  corporations,  and  the  transfer  of  property  and  franchises  to 
another.  The  term  appears  to  have  grown  up  from  a  practice 
prevailing  in  unincorporated  joint-stock  companies  created  by  deed 
executed  by  the  members,  whereby  one  company  would  coalesce 
with  the  other.  It  is  established  law,  that  unless  the  deed  pro- 
vides for  amalgamation  it  cannot  take  place  without  the  consent 
of  all  the  members.^  The  language  of  the  deed  must  be  clear. 
Even  the  word  "  amalgamate "  will  not  be  suiTicient  to  impose 
upon  a  subscriber  to  the  original  company  the  duty  to  take  stock 
in  the  new  organization.'*     If  amalgamation  take  jilace  without 

1  Code  of  Civ.  Pro.,        1785-1796.  3  j^  re  Era  Assurance  Society,  30  L.  J. 

2  Per  Wood,  V.  C,  in  In  re  Empire     Cli.  137. 

Assurance  Corp.,  L.  K.  4  Eq.  341,  at  p.  *  In  re  Empire  Assurance  Corporation, 

347.  L.  R.  4  Eq.  341  ;  Dougau's  Case,  L.  R.  8 

Ch.  App.  540. 


404  THE   LAW   OF   PERSONS. 

authorizing:  words,  it  will  be  ultra  vires,  and  a  dissenting  share- 
holder will  not  be  bound,  though  the  others  assent.^  Leaving 
out  of  view  now  mere  societies,  it  w^ould  seem  that  corporations 
could  not  amalgamate  without  legislative  power.  If  legislative 
authority  existed  when  the  corporations  were  chartered,  a  subse- 
quent amalgamation  would  bind  dissentient  shareholders,  as  they 
might  be  assumed  to  have  assented  to  it  when  they  made  their 
subscriptions.^  (a) 

V.  Effect  of  dissolution.  —  This  must  be  regarded  in  two 
aspects:  (1)  In  a  court  of  common  law.  (2)  In  a  court  of  equity 
as  aided  by  statutes. 

(1)  In  a  court  of  common  laiv.  In  the  early  common  law,  a 
corporation  was  regarded  from  the  point  of  view  that  its  rights 
and  liabilities  depended  upon  the  continuance  of  its  technical 
existence  as  an  artificial  person.  If  a  natural  person  died,  his 
existence  was,  to  a  certain  extent,  prolonged  by  the  presence  of 
heirs  or  executors  or  administrators  to  represent  in  court  his 
various  rights  and  liabilities.  Should  he  die  without  heirs,  his 
lands  escheated  to  the  State  as  "  ultimate  heir"  (idtimus  hccrcs'). 
On  the  other  hand,  in  the  case  of  a  corporation,  the  fee  simple 
was  supposed  to  vest  in  the  corporators  in  their  politic  or  cor- 
porate capacity  created  by  the  "  policy  of  man,"  and  to  such 
vesting  the  law  annexed  an  implied  condition  that  if  the  body 
politic  were  dissolved,  the  grantor  might  re-enter  upon  the  land 
and  repossess  himself  of  his  former  estate.^  The  personal  prop- 
erty belonged  to  the  king,  as  succeeding  to  all  goods  without  an 
owner.  So  on  technical  grounds,  no  action  could  be  brought  by 
a  creditor  to  recover  a  debt,  as  there  was  no  "  person "  that  he 
could  sue,  and  for  a  like  reason  debts  due  to  the  corporation  were 
extinguished.  Strictly  speaking,  if  an  action  were  pending  when 
a  corporation  was  dissolved,  it  would  instantly  terminate.  Rules 
such  as  these  are  to  the  last  degree  technical  and  subversive  of 
substantial  justice. 

(2)  In  courts  of  equity  and  hy  statute.  — The  old  common  law 
doctrine  is  practically  obsolete.  In  most  cases,  the  corporation 
would  be   regarded   as   holding   its   property  in  trust  for   those 

^  Clinch  V.   Financial  Corp.,  L.  R.  4  serabling  amalgamation  are  granted  under 

Ch.  App.  117.  certain  circumstances  to  an  official  liqui- 

2  Earl  of  Lindsey   v.   Great  Northern  dator  or  receiver. 
R'way   Co.,   10   Hare,   664.     See  also  25  ^  \  Co.  Litt.  13  b. 

&  26  Vict.  c.  89,  §  161,  where  powers  re- 


fa)  The  term    "  consolidation  "  is  employed   in  the  United  States  in  much  the 
same  sense  as  amalgamation  is  in  England. 


CORPORATIOXS.  405 

whom  it  represented.  In  tne  case  of  a  commercial  corporation, 
it  would  be  a  trustee  for  shareholders  and  creditors,  (a)  In 
the  case  of  a  charitable  corporation,  it  would  be  a  trustee  for 
those  whom  the  founders  had  designated.  It  is  a  settled  rule  in 
equity  that  no  trust  shall  fail  for  want  of  a  trustee.  Accordingly, 
on  the  dissolution  of  a  corporation,  the  court,  if  the  trust  be  a 
permanent  one,  may  designate  a  new  trustee,  or  if  that  be  the 
better  course,  may  close  up  the  affairs  and  distribute  the  property 
among  the  proper  beneficiaries.  Statutes  are  enacted  in  the 
various  States  in  aid  of  this  theory,  and  facilitating  the  exercise 
of  this  jurisdiction.! 

An  analogous  inquiry  has  been  raised,  when  land  is  acquired 
by  a  corporation  in  full  ownership,  by  eminent  domain  for  a  par- 
ticular purpose,  and  that  purpose  is  no  longer  practicable,  whether 
it  can  be  devoted  to  some  other  purpose.  It  is  decided  that  in 
such  a  case  there  is  no  reversionary  interest  in  the  grantor.^ 

Notwithstanding  dissolution,  the  legislature  may  revive  or  reno- 
vate the  corporation,  or  may  substitute  a  new  one  in  its  place. 
There  is  a  distinction  between  the  two  cases.  The  revival  restores 
the  corporation  with  its  former  rights  and  duties.  A  strictly  new 
corporation  would  not  represent  the  old  one.  When  a  contro- 
versy arises  as  to  which  result  has  taken  place,  it  must  be  decided 
as  a  matter  of  interpretation,  regard  being  had  to  the  intent  of  the 
legislature  as  well  as  of  the  corporators.^ 

DIVISION  II.  —  Special  Rules  applicable  to  Stock  Corporations. 

The  phrase  "  stock  corporations "  is  here  used  to  embrace  all 
corporations  having  a  capital  consisting  of  shares  susceptible  of 
separate  ownership.  These  have  largely  taken  the  place  of  part- 
nerships in  business  transactions,  as  the  capital  of  small  owners 
may  thus  be  readily  aggregated,  and  at  the  same  time,  in  case  of 
disaster,  they  will  be  able  to  escape  unlimited  personal  liability. 

1  Angell  &  Ames  on  Corporations  (11th  ^  Bellows  v.  Hallowell  &  Augusta  Bank, 
ed.),  §§  779  and  779  a.                                    2  Mason,  31,  43,  44. 

2  Heyward  v.  Mayor  of  New  York,  7 
N.  Y, 314. 


(a)  Cole  V.  Millerton  Iron  Co.,  133  N.  trol  and  dispose  of  as  a  natural  person 

Y.  164.     "While  admitting  that  corporate  may,  if  done  in  good  faith.      Hospes  v. 

assets  should  be  devoted  to  the  payment  of  Northwestern  Car  MTg  Co.,  48  Minn.  174; 

corporate   debts   to  the  exclusion   of  the  Wabash,  etc.  Ry.  Co.  v.  Ham,  114  U.  S. 

claims   of  stockholders,   some  authorities  587;  Fogg  v.  Blair,  133  Id.  534;  Clark  v. 

refuse   to    place   the  principle   upon   the  Bever,  139  LI.  96  ;  Gould  v.  Little  Rock 

theory  of  a  trust,  contending  that  corporate  M.  R.  &  T.  Ry.  Co.,  52  Fed.  R.  6S0. 
capital  belongs  to  the  corporation  to  cou- 


406  THE    LAW   OF   PEESONS. 

The  shares  also  have  this  advantage,  that  an  assignment  of  them 
has  no  effect  upon  the  continuance  of  the  organization,  while  in 
an  ordinary  partnership,  an  assignment  would  work  its  dissolution. 

Section  I,  Suhscrtptions  for  Stock  and  Assessmevits.  —  There 
are  two  instances  under  this  head,  —  one,  where  the  company  is 
already  organized,  and  the  other,  where  it  is  projected. 

In  the  first  instance,  if  a  subscriber  on  the  one  hand  agrees  to 
take  and  pay  for  stock,  and  the  company  to  supply  it,  the  transac- 
tion has  all  the  usual  elements  of  a  contract.^ 

The  second  instance  presents  greater  difficulties.  The  cor- 
poration not  yet  being  formed,  there  is  no  true  contract  when  the 
subscription  is  made.  It  must  be  regarded  as  an  offer  to  contract, 
which  is  accepted  by  the  corporation  on  its  organization.  Still,  it 
is  the  prevailing  view  that  even  while  the  transaction  is  imperfect 
or  inchoate,  it  cannot  be  withdrawn.^  (a)  The  advantage  to  be 
derived  from  membership  in  the  company  is  a  sufficient  considera- 
tion for  the  subscription.  A  promise  to  "  take  "  a  specified  number 
of  shares  will  be  sufficient,  as  there  is  implied  in  the  use  of  the 
word  "  take  "  a  promise  to  pay  for  them.^  The  subscription  paper 
may  refer  to  the  charter,  in  which  case  it  would  in  contemplation 
of  law  become  incorporated  into  it.  When  the  corporation  is 
organized,  an  action  will  lie  on  the  subscription.*  It  is  not  material 
that  no  cash  payment  was  made  when  the  subscription  was  re- 
ceived, unless  that  was  made  necessary  to  its  validity  by  statute, 
nor  is  it  necessary  to  give  any  notice  that  an  action  will  be  brought.^ 
In  fact,  the  ordinary  rules  of  the  law  of  contract  prevail.  The 
subscriber  becomes  a  stockholder  when  the  shares  are  apportioned 
to  him,  though  no  certificate  of  stock  has  been  issued  to  him. 
The  certificate  is  only  evidence  of  title.^ 

It  is  frequently  the  case  that  the  corporation  has  by  law  the 

1  Angel]  &  Ames  on  Corporations  (llth  ^  Buffalo  &  N.  Y.  City  R.  R.  Co.  v. 
eel.)  §  517.  Dudley,  14  N.  Y.  336. 

2  Lake  Ontario  &  C.  R.  R.  Co.  v.  ^  Lake  Ontario,  &c.  R.  R.  Co.  v.  Mason, 
Mason,  16  N.  Y.  451  ;  Schenectady,  &c.  16  N.  Y.  451. 

Plank  Road  Co.  v.  Thatcher,  11  Id.  102.  «  g^rr  v.  Wilcox,  22  N.  Y.   551  ;  Buf- 

3  Spear  v.  Crawford,  14  Wend.  20.  falo  &  N.  Y.  City  R.  R.  Co.  v.  Dudley, 

14  N.  Y.  336,  347. 


(a)  See  Minneapolis  Threshing  Machine  the  inchoate  contract,  even  though  there  is 

Co.  V.  Davis,  40  Minn.  110.     The  contrary  no  want  of  consideration.     If  the  agree- 

is  maintained  by  several  authorities.     See  ment  is  a  mere  promise  to  subscribe,  and 

Athol  Music  Hall  Co.  v.  Carey,  116  Mass.  not  an  actual  subscription,  it  is  not  an  offer 

471  ;  Hudson  Real  Estate  Co.  v.   Tower,  which  the  corporation  when  formed   can 

156    Mass.   82;   Auburn   Bolt   Works   v.  accept.     Lake  Ontario  Shore  Ry.  Co.    v. 

Shultz,  143  Pa.  St.  256.     The  theory  on  Curtiss,  80  N.  Y.  219 ;  Morawetz  on  Cor- 

which    these   decisions  are  based  is  that  porations,  §  49. 
there  is  no  promisee  capable  of  enforcing 


COEPORATIOXS.  407 

right  to  forfeit  the  stock  in  case  the  subscription  money  is  not 
paid.  This  is  but  a  cumulative  remedy,  the  corporation  not  being 
bound  to  resort  to  it.  It  cannot,  however,  bring  an  action  to 
recover  the  subscription  after  having  forfeited  tiie  stock,  since 
there  would  be  an  inconsistency  between  the  two  remedies.  This 
rule  will  prevail,  although  the  forfeiture  was  but  for  the  non- 
payment of  a  fractional  part  of  the  subscription.  Xo  action  will 
lie  for  the  residue.^  A  forfeiture  once  made  is  absolute  and  com- 
plete ;  and  the  subscriber  has  no  equitable  claim  upon  the  companv 
for  any  assumed  excess  of  value  of  the  stock  above  the  amount 
due  the  company .^ 

A  subscriber  cannot  escape  liability  on  his  subscription  by  a 
colorable  transfer  of  his  shares.  While  he  may  transfer  his  rights, 
he  cannot  by  any  such  course  divest  himself  of  his  liabilities.  It 
was  said  in  one  case  where  the  sale  occurred  after  calls  were 
made,  but  before  they  were  payable,  that  the  transferor  ought  still 
to  be  held  liable,  though  the  transaction  was  in  good  faith  and  the 
transferee  a  person  pecuniarily  responsible.^  Much  more  would 
this  be  true  were  he  without  means,  for  a  contrary  doctrine  might 
result  in  the  impairment  of  the  corporate  capital.*  (a) 

It  may  happen  in  the  case  of  a  corporation  organized  under  a 
general  law  that  all  the  stock  contemplated  by  the  articles  of 
association  is  not  subscribed  for.  This  is  not  material  if  there  be 
sufficient  subscriptions  to  organize  the  corporation.^ 

It  may  be  urged  as  a  defence  to  an  action  on  the  subscription 
that  the  company  has  without  the  subscriber's  consent  materially 
changed  the  articles  of  the  association  since  the  subscription  was 
made.  One  party  to  a  contract  cannot  modify  it  without  the  other's 
consent.^  If,  on  the  other  hand,  the  legislature  alter  the  consti- 
tuting act  under  a  reserved  power  to  do  so,  the  reservation  is 
deemed  to  enter  into  the  original  act  and  to  become  a  part  of  it, 
so  that  the  subscriber  is  still  liable.'^    When  new  stock  is  issued, 

1  Small  V.  Herkimer  Mfg,  &c.  Co.,  2  &  Schenectacl}^  &c.  Plank  Road  Co.  v. 
N.  Y.  330,  339 ;  see  ante,  p.  365.  ;  Thatcher,  11  N.  Y.  102,  107. 

2  Id.  and  Story  on  Equitj'  (13tli  ed.)  6  B.  C.  &  N.  Y.  R.  R.  Co.  v.  Pottle,  23 
§  1325,  and  cases  cited.  Barb.  21. 

3  See  remarks  of  Johnson,  J.  in  Sclie-  "^  Schenectady,  &c.  Plank  Road  Co.  v. 
nectady  Plank  Road  Co.  v.  Thatcher,  11  Thatcher,  11  N.  Y.  102  ;  Buffalo  &  N.  Y. 
N.  Y.  102.  City  R.  R.  Co.  v.  Dudley,  14  Id.  336,  354, 

*  Nathan  v.  Whitlock,  9   Paige,  152  ;     355. 
AfFg.  3  Edw.  Ch.  215.  

(a)  If  the  sale  be  made  in  good  faith  to  Cromwell,  25  Barb.  413  ;  Cole  v.  Ryan, 
a  solvent  purchaser,  many  authorities  ex-  52  Barb.  168  ;  Isham  v.  Buckingham,  49 
onerate  the  transferor  from  liability  for  N.  Y.  216  ;  Morawetz  on  Private  Corpora- 
calls  made  subsequent  to  the  transfer.  Bil-  tions,  §  159.  In  several  States  there  ire 
lings  V.  Robinson,  94  N.  Y.  415  ;  Tucker  statutes  upon  the  subject. 
V.    Gilman,    121   N.   Y.   189;  Cowles  v. 


40S  THE    LAW    OF   PERSONS. 

existing  shareholders  are  entitled  to  subscribe  for  it  rather  than 
strangers.^ 

The  rules  above  stated  are  not  to  be  extended  to  assessments 
made  upon  stockholders,  after  the  stock  lias  been  fully  paid  for. 
The  corporation  has  no  incidental  or  implied  power  to  make  such 
an  assessment  and  sue  a  subscriber  upon  it.  There  must  be  an 
agreement  to  pay  it  or  a  statute  justifying  it.^  If  a  remedy  by 
forfeiture  is  given,  no  other  can  be  resorted  to,  unless  the  stock- 
holder expressly  agree  to  pay  the  assessment,  in  which  case  the 
remedy  is  cumulative.^  The  reason  is  that  when  a  statute  creates 
a  new  power  and  gives  the  means  of  executing  it,  it  can  be  executed 
in  no  other  way> 

Section  II.  The  Nature  of  Stock.  —  Stock  is  an  interest  apper- 
taining to  a  shareholder  in  the  franchises  and  property  of  the 
corporation.^  While  the  corporation  owns  the  land  and  other 
property,  the  stockholder  lias  an  interest  in  the  nature  of  a  thing 
in  action.  It  is  not  negotiable,  like  a  promissory  note,  but  simply 
assignable.*^  It  is,  however,  personal  property,  even  though  the 
corporation  own  principally  real  estate.  The  leading  rights  which 
a  stockholder  possesses  are  to  receive  the  dividends,  to  participate 
in  the  election  of  managers  or  directors,  to  hold  the  corporation 
to  the  performance  of  the  trust,  and  on  dissolution  to  receive  a 
proportional  share  of  the  corporate  property,  which  would,  in  that 
event,  on  final  adjustment  belong  to  the  stockholders  free  from 
all  trust  of  the  corporation.  The  ownership  of  stock  is  commonly 
evidenced  by  a  certificate.  This  is  a  statement  by  the  corporation 
that  the  holder  is  entitled  to  a  specified  number  of  shares.  It  is 
commonly  stated  in  the  certificate  that  the  shares  are  transferable 
to  another  on  the  return  of  the  certificate  properly  indorsed.  The 
certificate  may  be  transferred  in  an  informal  manner  by  merely 
writing  the  name  of  the  owner  on  the  back  of  it  and  delivering  it 
in  that  condition  to  a  purchaser.  This  confers  on  the  latter  by 
implication  an  authority  to  write  over  the  indorsement  a  power 
of  attorney  authorizing  a  transfer  of  the  stock  to  whomsoever  he 
will.  In  that  way,  the  old  certificate  being  surrendered  to  the 
corporation,  a  new  one  may  be  taken  out  in  the  name  of  the  trans- 
feree. If  the  corporation  improperly  refuse,  it  can  be  required 
to  make  the  transfer  on  its  books  by  an  action  in  equity.  If  the 
owner  of  the  indorsed  certificate  does  not  have  the  transfer  made, 

1  Gray  v.  Portland  Bank,  3  Mass.  364.  5  Germain  v.  Lake  Shore  &  Mich.  So. 

2  Angell  &  Ames  on  Corporations  (llth     Ry.  Co.,  91  N.  Y,  483. 

ed.)  §  544.  6  Mechanics'  Bank  v.  N.  Y.  &  N.  H. 

3  Id.  §  548.  R.  R.  Co.,  13  K  Y.  599. 
*  Andover  Turnpike  Corp.  v.   Gould, 

6  Mass.  40.  44. 


COEPORATIONS.  409 

the  former  owner  remains  the  apparent  or  technical  owner, 
but  would  hold  the  stock  in  trust  for  the  person  beneficially 
entitled  to  it.  The  apparent  owner  alone  could  vote  at  an  elec- 
tion for  directors.  The  dividends  would  be  declared  in  his 
name,  though  he  would  be  required  to  account  for  them  to  the 
beneficial  owner. 

Special  rules  sometimes  exist  as  to  transfer,  such  as  that  it 
cannot  be  made  until  all  indebtedness  to  the  corporation  is  paid. 
Such  a  rule  may  be  prescribed  by  statute,  or  by  an  authorized  bv- 
law.i  In  the  latter  case,  the  purchaser  of  the  stock  must  at  the 
time  of  the  purchase  have  had  either  actual  or  constructive 
notice  of  the  by-law.2(a) 

Section  III.  The  Power  of  the  Corporation  over  its  Stock.  — 
Where  the  amount  of  stock  is  fixed  in  the  charter,  the  corpora- 
tion cannot  increase  it.  A  general  agent,  who  assumes  to  in- 
crease it,  could  not  do  so,  even  though  he  issued  it  to  a  purchaser 
acting  in  good  faith.^  Certificates  of  this  kind,  having  no  real 
but  yet  an  apparent  existence,  would  be  cancelled  on  proper  ap- 
plication by  a  court  of  equity .*  This  remark  is  consistent  with 
the  proposition  that  the  company  might  be  liable  in  some  other 
form  for  the  act  of  its  agent,  e.g.,  for  damages.^ 

Where,  however,  there  is  no  restriction  upon  the  issue  of  stock, 
the  corporation  may  increase  the  number  of  shares.  Such  an  act, 
if  the  capital  be  not  increased,  is,  so  to  speak,  a  dilution  of  the 
property.  If  the  capital  originally  consist  of  10,000  shares  of 
$100  each,  representing  81,000,000,  and  the  corporation  acquire 
8500,000  more  capital,  an  increase  of  5,000  shares  leaves  the 
capital  the  same  as  before,  and  if  understood  by  persons  interested, 
harms  no  one.  Accordingly,  the  company  may  properly,  in  such 
a  case,  make  dividends  in  stock.^  So  if  not  prohibited,  a  corpora- 
tion may  buy  its  own  stock,  or  receive  it  in  payment  of  a  debt, 
and  hold  it  as  being  still  in  existence,  and  reissue  it." 

Stock  is  sometimes  of  different  grades,  such  as  common  stock, 
and  preferred  stock.     The  effect  of  this  distinction  is  to  cause 

1  McCready  v.  Rumsey,  6  Dner,  574.  s  N.  Y.  &  N.  H.  R.  R.  Co.  v.  Sclmvler, 

2  Morawetz   on   Private   Corporations,     34  N".  Y.  30. 

§  203.  6  Williams  v.  Western  Union  Tel.  Co., 

8  Mechanics'  Bank  v.  N.  Y.  &  N.  H.  93  N.  Y.  162. 
R.  R.  Co.,  13  N.  Y.  599.  7  City  Bank  of  Columbus  v.  Bruce,  17 

*  N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  N.  Y.  507  ;  Taylor  v.  Miami  Co.,  6  Ohio, 

17  N.  Y.  592.  "  17G. 


(a)  Driscoll  v.  West  Bradley  &  C.  M.  N.   W.  R.  (la.)   61  ;    Bank   of  Africa   v. 

Co.,  59  N.  Y.  96.     Also  see  Hammond  v.  Salisbury  Gold  Mining  Co.  [1892J  A.  C. 

Hastings,    134   TJ.   S.    401  ;    Farmers'   &  281  ;  Bishop  v.  Globe  Company,  135  Mass. 

Traders'  Bank  of  Bonaparte  v.  Haney,  54  132. 


410  THE   LAW   OF   PERSONS. 

dividends  to  be  paid  to  the  latter  in  preference  to,  or  if  necessary, 
to  the  exclusion  of  the  former.  A  power  to  create  preferred 
stock  is  not  necessarily  implied  from  a  power  to  issue  capital 
stock.i  ^  corporation  may,  probably,  at  the  outset  divide  its 
stock  into  two  classes  on  this  basis,  giving  sufficient  publicity  to 
its  action,  so  that  no  one  may  be  misled.^  It  is  quite  otherwise, 
when  ordinary  shares  have  been  issued  on  the  usual  basis  of 
equality  among  shareholders.  It  is  then  beyond  the  power  of  the 
corporation  to  establish  a  preferred  class,  except  by  the  assent  of 
the  shareholders.  This  assent  may  be  shown  either  by  express 
words,  or  by  such  acts  on  the  part  of  the  stockholders  as  lead  to 
an  inference  of  assent,  —  such  as  unreasonable  delay  in  objecting 
to  the  issue,  where  strangers  have  relied  on  the  validity  of  the 
corporate  acts.^  Were  it  not  for  the  case  cited,  it  might  be 
claimed  with  much  show  of  plausibility  that  preference  shares 
are  merely  a  mode  of  paying  interest  exclusively  from  profits, 
payable  before  dividends  to  regular  stockholders.*  There  is  no 
implied  power  in  a  corporation  to  reduce  the  capital  stock.  This 
it  can  only  do  when  authorized  by  statute.^ 

Section  IV.  The  Rights  of  Stockholders.  —  (1)  To  vote  for 
directors.  —  This  topic  has  already  been  sufficiently  considered  in 
another  part  of  this  chapter.^ 

(2)  To  receive  dividends.  —  These  are  properly  payable  from 
the  profits.  It  has  already  been  stated  that  it  is  beyond  the 
power  of  the  company  to  reduce  its  capital  by  paying  dividends 
from  it,  even  though  the  stockholders  consent.  There  are  also 
statutory  prohibitions  to  be  noted. 

When  a  dividend  is  declared,  it  is  deemed  to  be  detached  from 
the  shares,  and  when  payable  it  becomes  a  debt  due  from  the 
corporation  to  the  stockholder.  They  belong  to  those  who  are 
stockholders  at  the  time  when  they  are  declared."'  Prior  to  the 
declaration  of  dividends,  the  profits  are  a  part  of  the  property  of 
the  corporation,  and  they  cannot  be  considered  separately  from 
the  stock.     Accordingly,  a  sale  of  shares  carries  with  it  by  impli- 

1  Hutton  V.  Scarborough  Hotel  Co. ,  5  Strong  v.  Brooklyn  Cross  Town  R.  R. 
11  Jur.  N.  s.  551.  Co.,  93  N.  Y.  426.     This  rule  would  lead 

2  This  seems  to  be  the  effect  of  Har-  to  the  conclusion  that  independentlj'  of 
rison  v.  Mexican  Railway  Co.,  L.  R.  19  any  prohibitory  statute,  a  corporation 
Eq.  358.  would  have  no  power  to  make  dividends 

3  This  subject  is  discussed  with  much  out  of  capital,  as  that  would  be  a  reduction 
fulness  and  ability  in  Kent  v.  Quicksilver  of  capital.  Flitcroft's  Case,  L.  R.  21  Ch. 
Mining  Co.,  78  N.  Y.  159.     A  number  of  D.  519. 

cases  are  collected  and   distinguished  on         ^  Ante,  pp.  362-364. 
page  181  of  the  report.  7  Jones  v.  Terra  Haute  R.  R.  Co.,  57 

*  Henry   v.    Great  Northern    Railway  N.  Y.   196  ;    Hyatt  v.  Allen.   56  N.  Y. 

Co.,  27  L.  J.  Ch.  1.  553. 


CORPORATIONS.  411 

cation  diviJends  subsequently  declared,  but  not  those  previously 
declared,  the  declaration  having  separated  them  from  the  general 
property  of  the  company. 

Holders  of  preferred  shares  are  entitled  to  Ije  paid  their  guar- 
anteed dividends  and  all  arrears,  before  the  holders  of  common 
or  non-preferred  stock  are  entitled  to  anything.  There  is  nothin*' 
in  law  to  prevent  the  creation  by  tlie  legislature,  or  by  the  com- 
pany at  the  time  of  its  organization,  of  a  series  of  preferred 
stock,  such  as  first  preferred,  second  preferred,  etc.  Each  of 
these  might  have  dividends  in  their  proper  order,  either  of  the 
same  or  of  varying  amounts,  the  first  having  always  in  payment  a 
preference  over  the  second,  etc.  Dividends  of  a  prescribed  amount 
are  sometimes  guaranteed  by  another  corporation,  as  in  the  lease 
of  a  railroad,  where  the  lessee  guarantees  dividends  to  the  stock- 
holders of  the  lessor  company.  If  the  corporation,  being  under 
a  duty  to  pay  preferred  dividends,  divert  the  funds  from  the 
preferred  to  the  common  stock,  interest  must  be  paid  on  the 
arrears.^ 

(3)  The  right  of  a  stockholder  to  call  the  directors  and  corpo- 
ration to  account  for  mismanagement,  etc.  —  The  stockholder  is 
to  be  regarded  as  having  an  interest  distinct  from  that  of  the 
corporation.  He  may,  under  certain  circumstances,  claim  the 
interposition  of  the  court  to  prevent  the  corporation  from  dealing 
in  an  unauthorized  way,  and  from  diverting  the  capital  from  its 
appropriate  uses.^  This  doctrine  is  founded  upon  the  notion  that 
the  corporate  property  is  held  in  trust  by  the  corporation,  and 
thus  a  court  of  equity  may  control  it  as  a  trustee.  It  is  a  very 
common  thing  when  a  trustee  will  not  preserve  trust  property, 
and,  for  example,  will  not  bring  or  defend  an  action  after  rea- 
sonable request,  for  the  cestui  que  trust  to  bring  the  action  and 
to  make  the  trustee  defendant.^  This  principle  was  applied  in 
the  case  of  Dodge  v.  Woolsey.^  The  facts  were  that  an  illegal 
tax  was  imposed  upon  a  bank.  The  corporation  would  not  resist 
its  collection.  A  suit  was  brought  to  prevent  the  collection  of 
the  tax  against  the  bank  itself,  the  directors,  and  the  tax  collector, 
and  it  was  maintained.^ 

The  directors  will  also  be  liable  to  a  stockholder  in  some 
instances  in  their  individual   capacity,  either   for   wasting   the 

1  See  the  case  of  Boardman  v.  L.  S.  &         M8  How.  U.  S.  331. 

M.  S.  R.  R.  Co.,  84  N.  Y.  157.  ^  See  also  March  v.  Eastern  R.  P.  Co., 

2  A  leading  case  upon  this  point  is  40  N.  H.  548  ;  Pratt  i;.  Pratt,  Read,  &  Co., 
Dodge  V.  Woolsey,  18  How.  U.  S.  331.  33  Conn.  446. 

3  Bate    V.    Graham,    11    N.    Y.    237  ; 
Hagan  v.  Walker,  14  How.  U.  S.  29. 


412  THE   LAW   OF   PERSONS. 

funds  or  depreciating  the  value  of  the  stock  by  improper  means,'- 
or  by  a  fraudulent  breach  of  trust.^  While  they  are  liable  for 
losses,  even  though  not  wilful,  if  they  occur  through  theii-  gross 
neglect  and  inattention,  they  are  not  responsible  if  they  have 
exercised  ordinary  care.^  Additional  remedies  are  given  by  stat- 
ute. Thus,  in  New  York,  if  dividends  in  a  monied  corporation 
are  made  from  capital  instead  of  income,  the  directors  are  per- 
sonally liable,  (a)  The  fact  that  the  stockholder  received  such  a 
dividend  will  not  bar  the  action,  if  he  did  not  know  that  the 
diversion  of  capital  was  taking  place.* 

(4)  Rights  of  stockholders  in  case  of  the  dissolution  of  the  corpo- 
ration. —  If  the  corporation  be  dissolved,  the  debts  being  first  paid, 
the  remaining  assets  belong  to  the  stockholders.  The  directors 
thereupon  become  trustees  for  the  management  of  the  property 
with  a  view  to  its  ultimate  division  among  the  stockholders.^  In 
making  distribution,  any  debt  due  from  a  stockholder  is  treated 
as  assets  of  the  corporation,  and  deducted  from  his  share.  The 
object  is  to  equalize  the  distributive  shares  of  all  the  stockholders 
in  the  fund  after  payment  of  all  debts  due  by  them  to  the 
corporation.^  The  stockholder  may  in  such  a  case  assign  his 
interest,  and  his  assignee  will  have  the  same  rights  against  the 
corporation  as  he  himself  would  have  had,  had  he  remained  owner. 
This  matter  is  usually  regulated  in  the  various  States  by  statute, 
in  accordance  with  the  principles  already  stated. 

Section  V.  Liability  of  the  Corporation,  Stockholders,  and 
Directors  to  Creditors.  —  But  little  additional  need  be  said  as  to 
the  liability  of  the  corporation.  As  has  already  been  stated,  it 
is  liable  (where  the  doctrine  of  ultra  vires  does  not  prevent) 
much  in  the  same  way  that  a  natural  person  would  be.  It  can 
be  sued  upon  its  contracts  and  its  torts,  and  judgment  obtained  in 
the  same  general  way.  In  addition  to  this,  when  it  becomes 
insolvent,  the  remedies  allowed  in  the  law  of  trusts  will  be  ap- 
plicable, the  property  being  a  trust  fund  for  the  payment  of  its 
debts.  The  principles  of  equity  jurisprudence  will  be  applied  to 
the  case.  Statutory  remedies  must  also  be  considered  in  the 
respective  States. 

As  a  general  rule,  stockholders  will  not  be  liable  to  the  creditors 

1  Robinson  v.  Smith,  3  Paige,  222.  ^  Angell  &  Ames  on  Corporations  (11th 

2  Cunningham  y.  Pell,  5  Id.  607.  ed.)   §  779a,  and  cases  cited;  Curran  v. 

3  Scott  V.  Depeyster,  1  Edw.  Ch.  513;  State  of  Arkansas,  15  How.  U.  S.  312. 
ante,  p.  391.  ^  James  v.   Woodruff,   10  Paige,   541, 

*  Gaffney  v.  Colvill,  6  Hill,  567.  aff'd  in  2  Den.  574. 


(a)  See  Stock  Corporation  Law,  Laws  of  1892,  ch.  688,  §  23. 


COErORATIONS. 


413 


of  the  corporation  from  their  private  estate.  Statutes  may,  how- 
ever, impose  either  a  partial  or  unlimited  personal  liability.  Thus 
the  National  Banking  Act  provides  for  a  partial  personal  liability. 
In  some  instances  unlimited  personal  liability  is  imposed  for  the 
payment  of  certain  debts,  as,  for  example,  for  the  wages  of  em- 
ployees (a).  Trustees  or  directors  may  become  liable  to  creditors 
for  personal  wrongful  acts  or  negligence  causing  injury.  There 
is  sometimes  a  statutory  liability,  as,  for  instance,  for  not  filing  a 
prescribed  report.  (6) 

{a)  See  Stock  Corporation  Law  of  New     the  Laws  of  1890,  as  amended  by  ch.  687 

York,  §  54.  of  the  Laws  of  1892)  all  corporations  are 

{b)  The  New  York  statute  is  found  in     divided  into  four  classes  :  ilunicipal  cor- 

the  Stock  Corporation  Law,  §§  30  and  31.      porations,    stock   corporations,    non-stock 

corporations,  and  mixed  corporations. 
Stock  cor[iorations  are  in  turn  divided 
into  monied,  transportation,  and  business 
corporations,  while  non-stock  corporations 
are  divided  into  religious  and  membership 
corporations.  Mixed  corporations,  which 
may  or  may  not  have  capital  stock,  are 
either  cemetery,  librar}',  co-operative, 
board  of  trade,  or  agricultural  and  horti- 
cultural corporations.  The  General  Cor- 
poration Law  is  applicable  to  all  domestic 
corporations,  and  provides  in  a  general 
way  for  their  administration  and  internal 
government,  leaving  the  details  of  organi- 
zation to  be  prescribed  by  other  laws. 

Another  act  of  especial  importance  is 
the  Stock  Corporation  Law  (ch.  564,  of 
the  Laws  of  1890,  as  amended  by  chs. 
2,  337,  and  688  of  the  Laws  of  1892).  This 
act  applies  to  all  corporations  having  capi- 
tal stock  divided  into  shares,  except  that 
the  first  article  does  not  apply  to  monied 
corporations.  Its  provisions  are  confined 
for  the  most  part  to  the  general  powers  of 
such  corporations,  to  subscriptions  for 
stock,  its  issuance  and  transfer,  and  to 
the  rights,  duties,  and  liabilities  of  stock- 
holders and  directors.  The  provisions  re- 
lating to  the  organization  of  stock  corpor- 
ations are  found  in  special  acts  passed  at 
the  same  time.  These  are  the  Banking 
Law,  the  Insurance  Law,  the  Railroad 
Law,  the  Transportation  Corporations 
Law,  and  the  Business  Corporations  Law. 
The  classes  of  corporations  to  which  the 
first  four  of  the  above  named  acts  apply, 
appear  from  the  respective  titles  of  these 
acts. 

The  Business  Corporations  Law  (ch. 
691  of  the  Laws  of  1892)  was  designed  to 
take  the  place  of  the  Manufacturing  Cor- 


The  policy  of  the  legislation  concerning 
the  creation  of  corporations  has  been  quite 
different  in  New  York  from  that  of  the  Eng- 
lish Companies  Act,  1862.  Ante,  p.  401. 
By  that  and  amendatory  statutes  a  single 
scheme  has  been  adopted  in  England  ap- 
plicable to  all  business  corporations  formed 
for  lawful  purposes.  In  New  York,  on  tlie 
contrary,  there  have  been  in  the  past  many 
distinct  methods  of  incorporation  provided 
for  in  separate  statutes,  which  were  en- 
acted to  meet  the  divei'se  ends  which  the 
incorporators  might  have  in  view.  Many 
corporations  were  formed  under  the  act  of 
1848  and  amendatory  acts  (ch.  40,  Laws  of 
1848),  known  as  the  "  Manufacturing  Cor- 
poration Act."  In  1875  a  general  scheme 
known  as  the  "  Business  Corporation  Act " 
(ch.  611,  Laws  of  1875),  was  enacted,  but 
this  did  not  repeal  the  law  of  1848,  nor  the 
other  numerous  acts  for  the  creation  of 
stock  corporations,  such  as  the  laws  relat- 
ing to  monied  corporations  and  to  railroad 
and  other  transportation  companies. 

Besides  laws  for  the  incorporation  of 
stock  corporations,  there  were  separate  stat- 
utes for  the  creation  of  religious,  social, 
charitable,  and  benevolent  organizations, 
and  distinct  rules  provided  for  their  ad- 
ministration, their  power  to  acquire  land, 
their  visitation,  and  dissolution. 

In  1890,  and  again  in  1892,  by  the 
recommendation  of  the  Commissioners  of 
Statutory  Revision,  it  was  endeavored  to 
simplify,  and  to  a  certain  extent  codify,  the 
various  general  corporation  acts  then  in 
force.  This  legislation  resulted  in  several 
acts  of  a  wide  scope  and  application.  By 
the  General  Corporation  Law  (ch.  563  of 


414 


THE   LAW   OF   PERSONS. 


poratiou  Act  of  1843  and  the  Business 
Corporation  Act  of  1875,  both  of  which 
were  repealed  by  the  amendments  to  the 
General  Corporation  Law  in  1892.  Under 
this  comprehensive  statute,  all  business  or 
other  industrial  corporations  may  be  organ- 
ized, except  that  no  corporation  can  be 
formed  under  it  for  the  purpose  of  carrying 
on  any  business  which  might  be  carried  on 
by  a  corporation  formed  under  any  other 
general  law  of  the  State  authorizing  the 
formation  of  corporations  for  the  purpose 
of  carrying  on  such  business. 


Notwithstanding  these  numerous  changes, 
the  various  statutes  for  the  organization  of 
religious,  charitable,  and  benevolent  cor- 
porations, and  also  those  for  the  creation  of 
what  are  now  known  as  mixed  corporations, 
still  remain  as  they  wei'e,  except  in  so  far  as 
the  provisions  of  the  General  Corporation 
Law  or  of  the  Stock  Corporation  Law 
may  be  applicable.  It  may  be  stated,  gen- 
erally, that  these  provisions  apply  only 
when  not  conflicting  with  other  corporate 
laws. 


BOOK    II. 

THE  LAW  OF  PERSONAL  PEOPERTY. 


PART   I. 


PROPERTY  IN   GENERAL  AND  THE  LIMITATIONS  TO  ITS 
OWNERSHIP. 


CHAPTER    L 

THE   NATURE   OF   PROPERTY. 

The  origin  of  the  right  of  property  is  to  some  extent  specu- 
lative, and  is  differently  regarded  by  writers  on  jurisprudence. 
Some  have  considered  it  from  the  point  of  view  that  property 
originated  with  mere  occupancy  or  possession  by  an  individual 
man,  who  maintained  his  right  by  persistency  of  occupation, 
losing  his  entire  right  when  his  possession  ceased.  Others,  more 
philosophically,  have  endeavored  to  trace  the  right  historically, 
and  to  show  as  a  matter  of  fact  what  were  the  earlier  forms  of 
ownership,  seeking  for  them  among  the  older  features  of  Roman 
law,  and  in  India  and  among  the  tribes  of  Germany.  Research 
and  inquiry  have  thus  been  carried  to  a  great  extent,  and  have 
led  to  solid  and  satisfactory  conclusions. 

The  right  of  property  must  be  regarded  as  primarily  founded 
in  the  family  relation,  and  in  particular  in  that  relation  in  the 
patriarchal  state.  This  presupposes  social  relations  and  some 
amount  of  law  or  public  opinion  to  uphold  its  existence  and  to 
prevent  its  subversion.  As  between  the  members  of  one  and  the 
same  family  of  whom  a  patriarch  may  be  supposed  to  be  the  head, 
the  natural  respect  and  reverence  due  from  the  various  members 
to  such  a  head  may  have  sufficed.  In  reference  to  strangers,  as, 
for  example,  to  other  heads  of  like  families,  there  must  have  been 
in  the  early  days  something  resembling  our  modern  notions  of 
international   law,  whether  by  compact  or  tacit  understanding, 


416  THE  LAW  OF  PERSONAL  PROPERTY. 

leading  to  mutual  respect  of  personal  and  property  rights.  As 
after  a  while  tliese  separate  interests  merged  into  a  larger  com- 
munity, ideas  were  expanded  to  meet  the  new  circumstances,  and 
rights  of  property  began  to  assume  the  form  which  is  recognized 
to-day. 

Tliere  are  still  in  the  East  communities  of  archaic  origin  which 
continue  their  ancient  institutions,  and  sliow  that  property  was 
not  held  at  first  individually,  but  in  common,  and  that  common 
ownership  Idy  a  village  community  is  much  older  than  individual 
ownership.  The  village  community  is  to  be  regarded  as  a  larger 
community,  of  which  the  patriarchal  family  is  the  unit.^  Mr. 
Maine  finds  much  support  for  this  theory  in  the  Hindoo  village 
community.  These  remarks  are  especially  applicable  to  land,  for 
movable  property  appears  to  have  been  at  an  early  day  the  sub- 
ject of  individual  ownership,  and  perhaps  to  some  extent  led  the 
way  to  individual  ownership  in  land. 

Very  close  attention  has  of  late  been  given  to  the  study  of  the  vil- 
lage community  in  Germany  by  writers  of  the  school  of  Von  Maurer. 
A  compendium  of  results  may  be  found  in  an  essay  by  Morier, 
contained  in  a  series  entitled  "  Systems  of  Land  Tenure  in  Various 
Countries,"  published  by  the  Cobden  Club.^  A  number  of  asso- 
ciated families  in  Germany  held  land  divided  into  three  divisions 
termed  a  "  mark."  There  were  the  mark  of  the  village,  the  "  com- 
mon mark,"  and  the  "  arable  mark,"  or  cultivated  section.  The 
families  dwelt  in  the  village,  and  held  the  "  common  mark  "  in  a 
species  of  undivided  ownership,  while  the  "arable  mark"  was 
cultivated  separately  by  the  respective  families.  There  would 
thus  appear  to  be  sejjarate  ownership  there  side  by  side  with 
undivided  ownership.  It  is  difficult  to  say  which  is  the  earlier, 
undivided  or  separate  ownership.  The  undivided  ownership  is 
not  to  be  confounded  with  communistic  ownership.  This  last 
involves  ownership  by  the  village  as  a  corporation,  so  that  no  one 
individual  has  any  separate  or  exclusive  interest;  while  an  undi- 
vided interest  is  capable  of  separation  and  exclusive  enjoyment. 
The  weight  of  evidence  is  strong  to  the  effect  that  among  the  Teu- 
tonic races  communistic  ownership  did  not  prevail,  although  the 
common  mark  was  owned  without  division.^ 

1  This  subject  is  fully  developed  by  Sir  and  valuable  work  entitled  "  Early  History 
Henry  Sumner  Maine  in  his  various  works,  of  Land-Holding  among  the  Germans," 
also  by  G.  L.  Von  Maurer,  in  Germany.  Boston,  1883.     The  theory  which  he  sup- 

2  Chap.  V.  (p.  279),  on  "  The  Agrarian  ports  is  fortified  by  the  citation  of  a  great 
Legislation  of  Prussia  during  the  Present  mass  of  authorities,  not  merely  from  text- 
Century,"  by  Sir  Robert  B.  D.  Morier.  writers,  but  from   original  sources  of  in- 

^  This  point  is  clearly  brought  out  by     formation. 
Mr.  Denman  W.  Ross  in  his  very  scholarly 


THE   NATURE   OF   PROPERTY.  417 

It  seems  possible  to  take  this  view:  as  to  all  that  property 
which  could  only  be  made  available  by  tillage,  or  regularly  recur- 
ring human  labor,  sejmrate  ownership  existed  from  the  earliest 
assignable  period  ;  while  from  the  land  which  was  set  apart  as 
yielding  spontaneous  products,  —  such  as  pasture-ground  or  forest, 
—  the  property  was  held  without  division.  This  division  would 
follow  the  natural  law,  that  steady  and  persistent  labor  is  not 
undertaken  without  a  reasonably  sure  prospect  of  reward.  Man 
being  substantially  the  same  being  in  all  ages,  the  labor  required 
to  till  arable  land  could  only,  if  free,  be  obtained  by  securing  to 
the  workman  the  exclusive  enjoyment  of  the  products  of  his  labor. 
This  separate  ownership  did  not  preclude  regulations  of  the  mode 
of  cultivation,  tending  to  produce  uniformity.  Nor  is  it  altogether 
inconsistent  with  a  method  of  new  assignments  of  land  from  time 
to  time  among  the  proprietors,  which  is  said  to  have  prevailed  at 
an  early  date,  and  which  could  be  made  in  such  a  way  as  to  secure 
an  equivalent  for  the  products  of  past  labor.  The  great  law  at 
all  events  is  recognized  that  no  crop  will  be  planted  and  tilled 
miless  at  least  between  the  time  of  planting  and  maturity  separate 
and  exclusive  possession  is  recognized,  and  separate  and  exclu- 
sive enjoyment  of  the  product  of  labor  is  secured.  It  is  much 
that  the  progress  of  the  Teutonic  races  for  more  than  a  thousand 
years  has  been  away  from  communism,  and  even  from  undivided 
interests  towards  separate  and  exclusive  ownerships.^ 

The  modern  inquiries  upon  the  origin  of  property  have  this  sur- 
passing advantage  over  those  that  formerly  prevailed,  in  that  they 
account  both  for  the  notion  of  individual  property  and  the  growth 
of  social  regulations  tending  to  foster  and  protect  it.  As  far  as 
we  can  wrest  from  antiquity  its  secrets,  separate  ownership  is  at 
least  coeval  with  undivided  ownership.  Separate  ownership  is 
from  the  outset  also  the  mistress  of  the  future,  and  tends  to 
undermine  and  overthrow  undivided  ownership,  and  practi- 
cally succeeds  everywhere,  except  in  the  sluggish  East,  where 
archaic  systems  still  linger,  though  apparently  doomed  to  swift 
decay  ,^ 

^  The  distinctions  and  the  resemWances  many.  A  great  debt  of  gratitude  is  due  to 
between  the  Hindoo  village  as  still  sub-  Jlr.  Maine  for  bringing  this  class  of  sub- 
sisting, and  the  Teutonic  village  of  early  jects  to  the  attention  of  scholars  both  in 
days,  as  well  as  that  which  existed  in  Eng-  England  and  America, 
land,  are  fully  discussed  by  Sir  Henry  -  Village-Communities,  p.  24  :  "  India 
Sumner  Maine,  in  his  work  on  "  Village-  is  gradually  losing  everything  which  is 
Communities,"  Lectures  3d,  4th,  and  5th.  characteristic  of  it."  The  only  chance  of 
It  would  seem  that  more  light  might  be  retaining  even  a  knowledge  of  Sanskrit  is 
shed  on  the  subject  in  hand  from  a  still  in  the  reactive  influence  of  Germany  and 
more  close  and  minute  examination  of  the  England, 
early   institutions   of    England   and   Ger- 

27 


418  THE  LAW  OF  PERSONAL  PROPEETY. 

The  word  "  property  "  has  two  quite  distinct  meanings  in  law, 
leading  to  much  confusion  in  the  minds  of  students.  In  one  sense, 
it  means  the  subjects  of  ownership,  —  the  lands  and  houses,  or  the 
ships  and  other  movable  articles  capable  of  ownership.  In 
another  and  more  technical  sense,  it  means  ownership  itself,  — 
the  interest  a  specified  person  may  have  in  the  houses  and  goods 
in  question.  In  the  one  sense,  it  is  objective  and  refers  to  out- 
ward and  physical  things  ;  in  the  other,  it  is  abstract  and  has  no 
reference  to  particular  objects.  A  single  instance  of  each  mean- 
ing may  be  cited  ;  when  a  distinction  is  taken  between  real  prop- 
erty and  personal  property,  the  subjects  of  ownership  are  referred 
to,  that  is,  as  to  their  nature,  whether  movable  or  immovable ; 
when  on  the  other  hand,  "  property  "  is  said  to  be  absolute  or  quali- 
fied, ownership  is  plainly  regarded.  In  this  book,  the  word 
"  ownership "  will  be  for  the  most  part  employed,  instead  of 
"  property  "  when  the  second  of  the  two  significations  is  intended. 


CHAPTER  II. 

THE   DISTINCTION    BETWEEN   REAL   AND   PERSONAL   PROPERTY. 

The  object  of  this  chapter  is  only  to  point  out  in  a  general  way 
the  difference  between  the  two  kinds  of  property,  reserving  the 
more  minute  consideration  of  personal  property  to  later  chapters. 
The  importance  of  the  distinction  is  largely  due  to  the  fact  that 
the  two  kinds  of  property  are  governed  by  different  systems  of  law. 
Real  property  is  largely  developed  out  of  the  feudal  system,  which 
has  no  relation  to  personal  property.  The  latter  grew  up  to  a 
considerable  extent  from  the  customs  of  merchants  (lex  merca- 
toria).  It  is  largely  influenced  by  the  Roman  law,  and  by  usages 
not  merely  in  England  but  in  other  parts  of  Europe.  Much  of  it 
has  been  worked  out  by  decisions  of  the  courts  within  a  compara- 
tively few  years.  The  law  of  real  property  is  in  its  theory  anti- 
quated, though  modified  by  the  necessities  of  modern  times.  It  is 
local  in  its  nature,  and  must  be  studied,  where  minute  knowledge 
is  required,  in  rules  locally  prevailing  in  the  State  where  the  land 
is  situated.  It  is  accordingly  a  leading  rule  that  a  conveyance  or 
will  of  real  property,  wherever  made,  must  comply  with  the  forms 
prevailing  in  the  place  where  the  land  is  situated  ;  while  a  sale  of 
personal  property  is  in  general  governed  by  the  law  of  the  place 
where  the  sale  is  made,  and  a  will  of  the  same  kind  of  property 
by  the  law  of  the  place  where  the  testator  is  domiciled  at  the  time 
of  his  death. 

Even  the  Roman  law,  though  largely  assimilating  the  rules 
governing  real  and  personal  property,  distinguished  for  some  pur- 
poses between  movables  and  immovables.  This  is  a  distinction 
based  on  the  inherent  difference  between  the  two  kinds  of  things. 
Some  branches  of  law  are  thus  peculiar  to  immovables,  such  as  the 
law  of  "servitudes"  or  rights  which  an  owner  of  land  or  an  indi- 
vidual may  have  in  the  immovable  property  of  another.  The 
general  idea  of  real  property  is  that  it  is  immovable,—  a  portion  of 
the  earth,  or  something  connected  with  it  or  attached  to  it.  Still, 
there  are  exceptional  things,  which  in  fact  are  movable,  but  for 
leo-al  reasons  are  deemed  to  be  real,  such  as  title  deeds  of  an  estate, 


420  THE  LAW  OF  PERSONAL  PKOPERTY. 

doves  in  a  dove-house,  fish  in  a  fish-pond,  etc.  Personal  property 
on  the  other  hand,  is  in  general  movable.  There  are,  however, 
certain  interests  in  land  classed  among  cliattels  and  deemed  to  be 
personal,  —  the  principal  instance  being  a  lease  for  a  definite 
number  of  years.  The  reason  for  this  is  historical  and  technical. 
Such  interests  originate  in  contract,  and  a  contract  is  personal. 
Although  a  lease  at  present  is  an  estate  in  land,  yet  its  origin  in 
contract  is  not  lost  sight  of,  and  in  tliis  way  it  is  for  many  pur- 
poses personal  property. 

Reference  must  also  be  made  to  a  rule  of  equity  jurisprudence, 
that  an  owner  may  so  impress  his  intent  or  purpose  upon  property 
as  by  a  mere  direction,  to  convert  it  from  one  species  of  property 
to  the  other,  without  any  actual  cliange  of  ownership.  Thus  a 
testator  may  by  his  will  direct  his  land  to  be  sold  and  converted  into 
money.  It  will  then  for  many  purposes  be  deemed  to  be  money 
at  the  mo>ment  of  his  death.  So  if  he  directed  in  the  same  manner 
his  money  to  be  laid  out  in  land,  it  w^ould  for  many  purposes  be 
regarded  as  land,  although  it  remained  in  the  form  of  money.  This 
is\nown  as  the  doctrine  of  "equitable  conversion."  In  some 
cases,  a  rule  of  law  restores  the  property  to  its  original  character. 
Tliis  is  termed  "  reconversion."  The  details  of  this  subject  may 
be  found  in  works  on  equity  jurisprudence. 

Frequently  a  question  arises  whether  the  attachment  or  annexa- 
tion of  an  item  of  personal  property  to  land  gives  it  the  character- 
istics or  qualities  of  real  property.  This  question  properly  belongs 
to  the  law  of  real  property  where  it  is  treated  under  the  title 
of  "Fixtures." 


CHAPTER  III. 

THINGS   NOT   THE   SUBJECT   OF   PRIVATE    OWNERSHIP. 

It  is  the  general  rule  of  law  that  things  are  capable  of  owner- 
ship. Such  a  theory  is  highly  desirable  since  it  tends  to  prevent 
rival  and  hostile  claims  and  public  disorder,  as  well  as  to  promote 
efficiency  in  the  production  of  wealth  ;  still,  there  are  certain  items 
of  much  intrinsic  importance  that  are  not  regarded  as  the  subject 
of  private  ownership. 

It  is  proper  for  tlie  sake  of  clearness  to  distinguish  between 
those  things  which  are  not  usually  the  subject  of  private  owner- 
ship, but  which  may  become  so  by  appropriation  or  occupancy, 
and  those  which  cannot  be  acquired  by  a  private  person,  at  least 
by  his  own  act.  Of  the  former  class  are  wild  animals,  precious 
stones  or  other  articles  found  on  the  seashore,  soil  washed  upon 
the  shore  of  land  already  under  private  ownership  (alluvion),  and 
the  like.  The  other  class  of  things,  and  these  are  referred  to  in 
the  present  chapter,  are  the  air,  running  water,  the  sea,  and  the 
seashore  below  a  prescribed  line  and  also  property  permanently 
devoted  to  public  or  religious  uses  and  declared  by  law  to  be 
inalienable.  Of  these,  some  are  incapable  of  appropriation  from 
the  necessity  of  the  case  or  by  the  common  consent  of  mankind  ,• 
others  by  the  local  law  of  the  country  where  the  things  in  ques- 
tion may  be. 

This  subject  is  a  branch  of  the  Roman  law,  and  is  treated  in  the 
Institutes  of  Justinian.^  As  to  instances  of  the  first  class,  he 
says:  "The  following  things  are  by  natural  law  common  to  all, — 
the  air,  running  water,  the  sea,  and  consequently  the  seashore.  .  .  . 
all  rivers  and  harbors  are  public,  so  that  all  persons  have  a  right 
to  fish  therein.  The  seashore  extends  to  the  limit  of  the  highest 
tide  in  time  of  storm  or  winter.  Again,  the  public  use  of  the  banks 
of  a  river,  as  of  the  river  itself,  is  part  of  the  law  of  nations ;  con- 
sequently every  one  is  entitled  to  bring  his  vessel  to  the  bank  and 
fasten  cables  to  the  trees  growing  there  and  may  use  it  as  a  rest- 
ing place  for  the  cargo  as  freely  as  he  may  navigate  the  river  itself. 
But  the  ownership  of  the  bank  is  in  the  owner  of  the  adjoining 

1  Book  II.,  Tit  I. 


422  THE  LAW  OF  PERSONAL  PROPERTY. 

land,  and  consequently  so  too  is  the  ownership  of  the  trees  which 
UTOw  upon  it.  Again,  the  public  use  of  the  seashore,  as  of  the  sea 
itself,  is  part  of  the  law  of  nations  ,  consequently  every  one  is  free 
to  build  a  cottage  upon  it  for  purposes  of  retreat  as  well  as  to  dry 
his  nets  and  haul  them  up  from  the  sea.  But  they  cannot  be  said 
to  belong  to  any  one  as  private  property,  but  rather  as  subject  to 
the  same  law  as  the  sea  itself  with  the  soil  or  sand  which  lies  be- 
neath it."  ^  Much  of  this  passage  is  a  summary  of  the  common 
law,  though  it  is  not  true  in  that  system  that  all  rivers  are  public, 
nor  that  a  navigator  upon  public  waters  can  fasten  cables  to  trees, 
etc.,  belonging  to  riparian  owners.  While  bays  and  harbors  and  the 
beds  of  navigable  livers  may  be  public,  yet  the  legislature  frequently 
appropriates  them  to  the  use  of  private  owners,  as  by  authorizing 
the  construction  of  wharves,  etc.,  or  grants,  perhaps,  a  right  to 
plant  and  cultivate  oysters  on  the  bed  of  navigable  waters  within 
its  jurisdiction.  It  may  also  be  remarked  that  water  itself  from  a 
running  stream  may  sometimes  become  the  subject  of  private 
appropriation,  as  for  example,  in  the  form  of  ice  cut  and  stored 
in  ice-houses.  Such  ice  has  all  the  qualities  of  property.  It  may 
even  be  the  subject  of  larceny .^  In  the  case  cited,  the  ice  was 
not  private  property  while  in  the  river  from  which  it  was 
taken. 

It  was  also  a  rule  of  the  Roman  law  that  property  devoted  to 
sacred  or  religious  purposes  was  not  the  subject  of  individual 
ownership.  This  principle  was  carried  very  far.  If  property  was 
once  regularly  consecrated  it  became  inalienable,  except  that  if 
movable  it  could  be  sold  for  the  redemption  of  captives,  the  sup- 
port of  the  poor  in  time  of  famine,  and  the  payment  of  church 
debts.  Finally,  land  could  be  made,  as  it  were,  quasi  sacred  by 
its  full  owner  burying  a  dead  body  in  it,  or  by  being  buried  in  it 
himself.  It  was  not  fully  "  sacred"  in  this  case,  for  it  remained 
private  property,  but  could  not  be  diverted  from  the  purpose  to 
which  it  had  been  put.^ 

There  is  no  such  doctrine  in  the  common  law.  Private  prop- 
erty cannot  be  withdrawn  from  commerce  in  this  manner,  except 
in  accordance  with  the  law  of  "  charitable  trusts,"  to  be  hereafter 
noticed. 

1  Moyle's  Translation,  Oxford  :  Claren-  and  closely  resembling  religious  purposes, 
don  Press,  1883,  vol.  2,  p.  36.  Justinian    says    in     another    place    that 

2  Ward  V.  The  People,  6  Hill,  144.  "there  is   very  little   difference   between 
2  1  Moyle's  Institutes,  note  8,  p.  185.     public  and  sacred  things."     (7th  Novel  of 

The    underlying  thought  here   seems   to    Justinian.) 
have  been  that  these  purposes  were  public 


CHAPTER  IV. 

THE   QUALIFICATIONS    OF   OWNERSHIP. 

These  are  derived  from  theories  concerning  the  welfare  or  the 
interest  of  the  State,  or  in  other  words,  from  the  view  that,  under 
the  circumstances,  private  ownership  should  not  exist,  or  if  it 
does  exist,  that  it  should  be  subverted  in  the  particular  instance. 
In  this  way  ownership  may  be  abridged  or  destroyed  on  the  occur- 
rence of  some  act  or  event,  without  any  fault  of  the  owner,  but 
on  public  grounds.  In  such  cases  there  is  a  limit  to  the  generally 
absolute  character  of  ownership.  Still,  ownership  continues  in 
full  force  until  the  decisive  event  happens. 

The  instances  that  may  be  grouped  together  under  tliis  general 
statement  are  these  :  (1)  Theft,  or  other  wrong-doing  whereby 
ownership  is  subverted  ;  (2)  taxation  ;  (S)  eminent  domain;  (4) 
public  necessity ;  (5)  the  police  power.  These  will  be  treated 
under  separate  sections. 

Section  I.  Theft  or  other  Wrong-doing.  —  It  is  a  settled  rule 
that  in  general  an  owner  cannot  lose  his  ownership  without  his 
consent.^  The  prominent  excei)tion  to  this  rule  is  the  transfer  of 
money,  or  its  equivalents,  including  bank  bills,  bills  of  exchange, 
promissory  notes,  and  checks  payable  to  order  and  endorsed  in 
blank  by  the  payee,  or  similar  instruments  payable  to  bearer. 
These  last  three  must  be  transferred  before  tliey  are  due,  and  all 
must  be  taken  by  a  person  paying  value  and  acting  in  good  faith. 
This  statement  does  not  include  bills  of  lading  of  goods,  nor  cer- 
tificates of  stock  in  incorporated  companies.  It  must  be  confined 
to  instruments  containing  promises  to  pay  money. 

There  is  a  distinction  to  be  taken  between  a  case  of  theft  or 
other  purely  wrongful  act,  and  that  of  fraud.  By  the  term 
"  fraud,"  is  now  meant  tlie  case  where  the  owner  intends  to  trans- 
fer the  ownership,  but  is  induced  to  do  so  by  fraudulent  represen- 
tations. In  this  case  there  is  the  element  of  consent  on  his  part, 
and  until  the  transaction  is  repudiated  the  title  is  vested  in  the 
defrauder.     Should  he  accordingly  transfer  to  an  innocent  pur- 

1  Saltus  V.  Everett,  20  Wend.  267. 


424  THE  LAW  OF  PERSONAL  PROPERTY. 

chaser,  the  title  would  pass  to  the  latter,  and  the  sole  remedy 
of  the  former  owner  would  be  to  proceed  against  the  defrauder. 
This  rule  would  not  be  changed  though  the  statutes  of  a  State 
made  the  fraud  a  felony. 

There  is  a  class  of  cases  where,  upon  a  purchase  and  sale  of 
goods,  it  is  mutually  agreed  that  the  title  shall  not  pass  until  the 
goods  are  paid  for.^  The  agreement  may  provide  for  the  pay- 
ment by  instalments.  Assuming  that  such  partial  payments  are 
made,  still  the  apparent  purchaser  will  have  no  title  until  full 
payment  is  made,  (a)  The  question  may  then  arise,  whether 
before  full  payment  he  can  transfer  to  another  the  ownership  of 
the  chattel  itself.  The  better  opinion  is  that  he  cannot,  and  that 
the  most  that  he  can  do  is  to  put  the  purchaser  in  his  own  position, 
even  though  the  latter  act  in  good  faith  and  pay  full  value.  (5) 
It  would  be  perfectly  lawful  for  a  State  to  provide  by  law  that  the 
"  seller,"  under  such  circumstances,  should  take  certain  steps  to 
insure  publicity,  such  as  to  file  the  certificate  of  sale  in  a  speci- 
fied public  office,  under  the  penalty,  if  he  fail  to  do  so,  of  losing 
the  ownership  in  favor  of  a  derivative  purchaser  acting  in  good 
faith  (c). 

The  general  principles  above  stated  will  not  prevent  an  owner 
from  abandoning  goods  by  a  decisive  act,  and  tlms  losing  owner- 
ship. 

Section  II,  Taxation.  —  In  American  law,  there  is  a  general 
power  of  taxation  vested  in  each  State  in  analogy  to  a  like  power 
in  English  law,  as  well  as  a  specific  power  lodged  by  the  terms  of 
the  United  States  Constitution  in  the  general  government.  The 
one  power  is  implied ;  the  other  is  express.  In  general,  there  is  no 
restriction  found  in  the  State  constitutions  upon  the  power  to  tax. 
It  can  properly  be  exercised  only  for  some  public  purpose.     It 

1  Ballard  v.  Bursjett,  40  N.  Y.  314  ;  Bigelow  v.  Huntley,  8  Vt.  151 ;  Sargent 
V.  Metcalf,  5  Gray,  306. 

{a)  Benner  v.   Puffer,  114  Mass.  376  ;  criticised  as  leading  to  confusion.     Benja- 

Nichols  V.  Ashton,  155  Mass.  205 ;  Thorpe  min  on  Sales  (Corhin,  4th  Am.  ed.)  §§  358- 

Brothers   &   Co.  v.   Fowler,    57  la.    541  ;  360.      A  rule  contrary  to  that   stated  in 

Mack  V.  Story,    57    Conn.    407  ;    Cole  v.  the  text  is  found  in  the  following  cases. 

Mann,  62  N.  Y.  1 ;  Bean  v.  Edge,  84  N.  Y.  ]\IeCormick  i;.  Hadden,  37  111.  370  ;  Van 

510.  Duzor  V.   Allen,  90   111.  499  ;    Vaughn  v. 

(b)  Some  authorities  draw  a  distinction  Hopson,  10  Bush,  337  ;  Forrest?;.  Nelson, 

between  a  conditional  sale   and  a  condi-  lOS   Pa.  St.   481  ;  Lincoln  v.  Quynn,  68 

tional  delivery,  holding  in  the  latter  case  Md.  299. 

that  if  the  delivery  is  made  the  condition  (c)  See  in    New  York,  Laws  of  1884, 

is  waived,  and  the  title  vests  absolutely  ch.  315  ;  Rev.  Stats,  p.  2522,  as  amended 

in  the  vendee.    Comer  v.  Cunningham,  77  by  ch.  632  of  the  Laws  of  1892,  and  ch. 

N.  Y.  391  ;    Parker  v.   Baxter,   86  N.  Y.  684  of  the  Laws  of  1893. 
586.     This  distinction  has,  however,  been 


THE    QUALIFICATIOXS   OF   OWNERSHIP.  425 

would  be  in  the  highest  degree  unjust  to  tax  the  community  fur 
the  benefit  of  a  particular  individual.  If,  however,  the  purpose 
be  public,  the  power,  in  the  absence  of  special  restriction,  is 
unlimited,  since  the  occasions  that  may  require  the  exercise  of 
the  taxing  power  cannot  be  foreseen.  A  single  locality,  such  as 
a  city  or  town,  may  be  taxed  without  extending  the  taxation  else- 
where. There  are  reasons  requiring  taxation  in  some  instances 
to  be  limited  in  its  area,  as  where  the  object  is  to  further  some 
local  improvement;  and  such  taxation  is  constitutional. ^ 

There  is  a  single  restriction  upon  State  power  to  tax  found  in  the 
United  States  Constitution  to  the  effect  that  no  State  shall  witiiout 
the  consent  of  Congress  lay  any  imposts  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws.^  In  regard  to  taxation  by  the  United  States 
government,  there  are  special  rules  and  some  restrictions  found 
in  the  8th  and  9th  Sections  of  Article  I.  of  the  Constitution. 

If  these  restrictions  are  violated,  the  law  is  void.  Where  the 
taxing  power  is  lawfully  exercised,  the  person  taxed  may  be 
deprived  of  his  property  without  any  violation  of  principle,  since 
taxation  is  necessary  to  political  existence.  The  individual  taxed 
is  assumed  to  receive  an  equivalent  for  the  property  of  which  he 
is  deprived  in  the  benefits  to  be  derived  from  good  government 
and  the  due  administration  of  law.  The  distinction  between  the 
power  of  taxation  and  the  right  of  eminent  domain  is  stated  in 
the  next  section. 

Section  III.  Eminent  Domain.  —  The  meaning  of  this  expres- 
sion is  the  right  of  a  State  or  of  the  United  States,  as  the  case 
may  be,  to  take  property  for  public  purposes.  This,  again,  is  a 
power  inherent  in  a  State.  It  may  be  necessary  to  exercise  it  for 
protection  and  defence  in  time  of  war,  or  for  the  welfare  of  the 
people  in  time  of  peace.  A  similar  power  was  exercised  under  the 
Roman  law.^ 

The  law  of  "  eminent  domain  "  is  in  no  respect  founded  upon 
feudal  principles.  It  applies  both  to  real  and  personal  property. 
It  has  its  foundation  in  the  theory  that  in  tlie  presence  of 
imperative  public  interests  private  rights  of  property  must  give 
way.  Still,  this  rule  is  not  to  be  pressed  so  far  as  to  lead  to  con- 
fiscation. The  individual  owner  should  be  compensated  for  liis 
loss,  so  tliat  •'  eminent  domain "  in  actual  practice  is  but  little 
more  than  a  compulsory  transfer  for  value. 

1  People  V.  Mayor  of  Brooklyn,  4  N.  Y.  ^  The  7th  Novel  of  Justinian.  Provi- 
419  ;  Town  of  Guilford  v.  Supervisors  of  sion  is  made  in  this  case  for  taking  prop- 
Chenango  County,  13  Id.  143.  erty  of  the  Churcli  for  the  use  of  the  State, 

2  Art.  I.  §  10,  cl.  2.  and  an  indemnity  is  provided  for. 


42 G  THE   LAW   OF   PEIISONAL   PKOPERTY. 

The  obligation  to  provide  compensation  is  secured  by  clauses 
both  in  the  United  States  and  State  Constitutions.  The  language 
used  is,  >'  nor  shall  private  property  be  taken  for  public  use  with- 
out just  compensation."^  This  clause,  as  found  in  the  United 
States  Constitution,  is  only  intended  as  a  restraint  upon  the  action 
of  Cori(/ress,  and  not  upon  that  of  the  StatesP-  It  is  on  this  ac- 
count that  a  like  clause  is  found  in  various  State  Constitutions,  in 
order  to  bind  State  legislatures. 

The  distinction  between  the  right  of  eminent  domain  and  the 
power  of  taxation  is  to  be  carefully  noted.  Taxation  is  based 
upon  contribution  between  the  members  of  the  community  or  of  a 
class  of  persons  ;  eminent  domain  is  founded  upon  the  idea  that 
the  State  takes  from  an  individual  more  than  his  share  of  the 
public  burdens.  Taxation  falling  upon  a  class  of  persons  is  appor- 
tioned among  them  according  to  some  rule  of  apportionment. 
On  the  other  hand,  "  eminent  domain "  operates  upon  an  indi- 
vidual without  reference  to  any  amount  imposed  upon  any  other 
individual.^ 

Eminent  domain  can  only  be  exercised  by  or  under  sov- 
ereign authority,  i.  e.,  by  a  State  or  by  the  United  States.  Its 
exercise  is  partly  a  legislative  and  partly  a  judicial  matter.  In 
other  words,  there  are  always  two  possible  inquiries  in  this  class 
of  cases  :  one  is,  whether  the  proposed  use  for  which  the  prop- 
erty is  to  be  taken  is  in  its  nature  public  or  private ;  the  other, 
whether  an  exigency  has  arisen  in  which  the  right  should  be 
exercised.  The  determination  by  the  legislature  of  the  first 
inquiry  in  favor  of  the  use  being  public  may  be  reviewed  by  the 
courts ;  *  that  of  the  latter,  is  final  and  conclusive.^  (a)  This 
principle  was  applied  to  a  statute  allowing  rural  cemetery 
associations  to  take  land  compulsorily.  It  was  held  to  be  void, 
as  the  use  was  deemed  by  the  court  to  be  private,  and  not 
public.^ 

It  is  not,  however,  necessary  that  the  use  should  benefit  the 
entire  people  of  a  State  or  of  the  nation,  as  the  case  may  be.  It 
is  enough  if  it  promotes,  for  example,  the  industrial  power  or 
resources  of  a  considerable  number  of  the  inhabitants,  or  in  any 

i  Art.  V,  of  Amendments.  *  Talbot   v.    Hudson,    82   Mass.    417  ; 

2  AVithers  i^.  Buckley,  20  How.  U.  S.  Matter  of  Deansville  Cemetery  Associa- 
84.  tion,  66  N.  Y.  569. 

3  People  V.  Mayor  of  Brooklyn,  4  N.  Y.  e  flatter  of  Fowler,  53  N.  Y.  60. 

419,  424  ;    Howell  v.  City  of  Buffalo,  37         ^  Matter  of  Deansville  Cemetery  Asso- 
N.  Y.  267.  ciation,  66  N.  Y.  569. 


(a)  Matter  of   Application   of    Union     Water  "Works   Co.    v.  Bird,   130   N.    Y. 
Ferry  Co.,  98  N.  Y.  139,  153  ;  Pocautico     249. 


THE    QUALIFICATIONS    OF    OWNERSHIP.  427 

way  indirectly  adds  to  public  convenience  or  even  pleasure  or 
recreation.  But  it  will  not  be  enougli  to  justify  a  claim  of  emi- 
nent domain  if  the  property  to  be  taken  is  to  remain  under  private 
ownership  and  control,  and  no  right  to  the  use  or  to  direct  the 
management  of  it  is  conferred  upon  the  jniblic^  (a)  However,  the 
State  may  delegate  the  power  to  a  local  municipality,  or  even  to  a 
private  corporation,  such  as  a  railroad  or  canal  company,  where 
the  circumstances  show  that  the  use  will  be  public  in  its  nature. 

The  mode  of  exercising  this  power  should  next  be  considered. 
A  common  form  of  expression  is  to  call  it  a  case  of  "condennui- 
tion."  The  property  is  said  to  be  "  condemned."  This  term 
will  be  used  as  occasion  may  require  in  the  further  course  of  this 
discussion. 

Proceedings  to  condemn  property  are  regulated  by  law,  and  in 
some  instances,  as  in  New  York,  to  some  extent  by  constitutional 
provision.  The  New  York  constitution  requires  that  the  amount 
of  compensation  should  be  assessed  by  a  jury  or  by  three  com- 
missioners appointed  by  a  court  of  record.^  Details  will  not  be 
stated  here,  but  must  be  sought  in  the  particular  act  or  class  of  acts 
applicable  to  the  subject.  Thus,  in  taking  land,  the  statute  some- 
times only  allows  a  mode  of  use  or  easement  to  be  taken ;  in  other 
instances,  the  entire  ownership  may  be  taken.  It  might  happen 
in  the  last  case  that  it  would  finally  turn  out  that  a  portion  of  the 
land  was  not  needed  for  the  public  purpose,  although  it  had  been 
fully  acquired  and  paid  for.  As  the  ownership  has  vested  in  the 
body  (e.  g.,  a  city)  acquiring  it,  it  may  be  sold  or  disposed  of  in 
the  same  manner  as  other  acquisitions. 

The  principle  on  which  compensation  is  awarded  in  condemna- 
tion proceedings  is  to  make  up  to  the  former  owner  the  loss 
sustained  by  him.  It  will  accordingly  be  necessary  to  take  into 
account  the  extent  of  the  owner's  interest  which  is  to  be  "  con- 
demned." If  it  be  an  easement,  such  as  a  right  of  way,  as  the 
entire  interest  of  the  proprietor  is  not  taken,  compensation  will 
be  made  accordingly.  Then  if  a  second  exercise  of  the  power 
of  condemnation  were  made  over  the  same  property,  additional 
compensation  must  be  made.^ 

It  is  a  fundamental  prerequisite  to  a  claim  for  compensation 
under  our  law,  that  some  property  should  be  taken.  The  lan- 
guage  of   the    constitutional   provision    is,   "  nor    shall    private 

1  Matter  of  the  E.  B.  W.  &  M.  Co.,  96  8  -Williams  v.  N.  Y.  Central  R.  R.  Co., 
N.  Y.  42.                                                            16  N.  Y.  97  ;  State  v.  Laverack,  34  K.  J. 

2  Art.  I.  §  7.  Law,  201. 

(a)  Matter  of  the  Split  Rock  Cable-  Water  Works  Co.  v.  Bird,  130  N.  Y. 
Road    Co.,    128    N.    Y.    408;    Pocautico     249. 


428  THE  LAW  OF  PERSONAL  PROPERTY. 

property  be  takeii  for  public  use  without  just  compensation." 
Accordingly,  no  claim  for  consequential  damages  can  be  made 
for  the  erection  of  public  works  in  the  vicinity  of  the  property 
of  the  claimant,  unless  his  property  itself  be  taken.  Thus,  if  a 
railroad  company  under  public  authority  should  lay  its  track  in 
the  bed  of  a  navigable  river,  thus  cutting  off  the  approach  of  a 
riparian  proprietor  by  boats  to  the  river,  he  would  have  no  claim 
for  compensation  from  the  company,  as  his  property  would  not  be 
taken.i  ^^~)  While  the  principle  stated  in  Gould  v.  Hudson  Riv.  R. 
R.  Company,  just  cited,  is  correct,  there  is  room  for  doubt  whether 
it  was  correctly  applied.  In  a  similar  case  in  England,  it  was 
decided  that  the  construction  of  an  embankment  along  the  river 
Thames  in  front  of  the  land  of  a  riparian  proprietor,  and  prevent- 
ing his  approach  to  the  river,  deprived  him  of  a  right  of  property 
for  which  compensation  was  due.  Such  an  accessory  right  to  the 
use  and  enjoyment  of  land  was  deemed  itself  to  be  land.^  A 
cognate  question  became  of  great  importance  in  the  construction 
of  elevated  railways  in  the  city  of  New  York.  It  was  decided 
that,  even  conceding  that  the  city  owned  the  fee  of  the  street,  yet 
as  it  had,  on  opening  a  particular  street,  agreed  that  it  should 
be  forever  kept  open  as  a  street  for  the  benefit  of  the  abutting 
property,  the  owners  had  an  easement  appertaining  to  their  land 
which  constituted  "  property,"  and  which  could  not  be  taken  or 
materially  impaired  in  value  by  the  railroad  company  without 
compensation.^  (6) 

1  Gould  V.   Hudson  Riv.  R.  R.  Co.,  6  IMcCarthy  v.  Metropolitan  Bd.   of  Works, 
N.  Y.  522.  L.  R.  7  C.  P.  508. 

2  Duke  of  Buccleuch  v.  Metropolitan  ^  Story  v.  Kew  York  Elevated  R.   R. 
Bd.  of  Works,  L.  R.  5  H.   L.   Cas.   418;  Co.,  90  N.  Y.   122;  Arnold   v.    Hudson 

Riv.  R.  R.  Co.,  55  Id.  661. 


(rt)  This  case  has  been  often  questioned,  value  of  the  part  taken,  but  also  conipen- 

and  may  properly  be  considered  as  over-  sation  for  the  depreciation  in  value  caused 

ruled.     Kane  ■;;.  New  York  Elevated  Ry.  to  the  remainder.     Henderson   v.   N.  Y. 

Co.,  125  N.  Y.  164;  Rumsey  v.  New  York  Central   R.  R.  Co.,  78  N.  Y.  423  ;  Bohm 

&  New  Eng.  Ry.  Co.,  133  N.  Y.  79  ;  s.  c.  v.  The  Met.  El.  Ry.  Co.,  129  N.  Y.  576  ; 

136  N.  Y.  543.  Cummins  v.  Des  Moines  &  St.  Louis  Ry. 

(b)  See  also  Lahr  v.  Met.  El.  Ry.  Co.,  Co.,    63   la.    397.      What    constitutes  a 

104  N.  Y.  269;  Abendroth  v.  Manhattan  "taking"  has  been  much  discussed  and 

Ry.  Co.,  122  N.  Y.  1  ;  Kane  v.  New  York  variously  decided.     The  tendency  of  the 

El.    Ry.  Co.,    125  N.  Y.    164.     In  these  later  authorities  is  to  regard  any  invasion 

cases  the  principle  of  the  Story  case  was  of  a  property  right  as  a  "taking,"  whether 

affirmed  and  its  application  extended.  property  is  actually  converted  and  the  title 

It  is  a  general  rule,  as  stated  in  the  text,  thereto  actually  divested,  or  not.     Eaton 

that  purely  consequential  damages,  such  v.  The  B.  C.  &  M.  R.  R.,   51  N.  H.  505  ; 

as  those  incidental   to  the  occupation  of  Pumpelly  v.  Green  Bay  Co.,  13  Wall.  166; 

the  land  of  another,  are  not  recoverable.  Rigney  v.  The  City  of  Chicago,  102  111. 

If,  however,  some  property  is  taken,  the  64;  Sedgwick  on  Damages,  §§  1114-1124; 

owner  is  entitled  to  receive  not  only  the  Lewis  on  Eminent  Domain,  §§  56-59.     In 


THE    QUALIFICATIONS   OF    OWNERSHIP.  429 

Under  these  rules,  it  is  well  settled  that  no  title  to  the  ])roi.- 
erty  taken  passes  until  compensation  is  actually  made.  It  is  not, 
however,  necessary  that  the  payment  of  comi^ensation  sliould 
precede  the  public  occupation.  Payment  should  be  made  within 
a  reasonable  time.  It  is  enough  if  an  actual  and  certain  remcdv 
is  provided  whereby  the  owner  may  compel  payment  of  his 
damages  before  he  is  required  to  part  with  his  property. ^ 

No  distinction  in  the  foregoing  statements  is  made  between  jiro- 
ceedings  for  condemnation  in  behalf  of  a  State  and  of  the  United 
States.  The  power  of  the  United  States  to  proceed  directly  in 
such  a  case  has  been  sustained  by  the  Supreme  Court  of  the 
United  States.^  It  may  also  be  a  petitioner  in  a  State  court  in 
the  same  general  way  as  a  private  foreign  corporation.^  This 
principle  does  not  go  so  far  as  to  compel  a  State  to  pay  for  land 
for  the  use  of  the  United  States,*  nor  to  justify  proceedings  under 
a  State  law  insufficiently  framed.^ 

It  is  assumed  that  a  State  cannot  exercise  the  right  of  eminent 
domain  so  as  to  interfere  with  the  paramount  power  of  the 
United  States.  Still,  there  would  seem  to  be  nothing  to  prevent 
the  taking  from  the  United  States,  as  a  mere  landed  proprietor,  of 
a  portion  of  its  domain  within  State  limits.^ 

The  State  has  no  power  under  this  rule  to  take  one  mau's 
property  and  give  it  to  another,  even  though  it  make  full  compen- 
sation.'^    This  principle  was  applied  to  the  case  of  a  private  road. 

1  Matter  of  the  Petition  of  United  °  Darlington  v.  United  States,  82  Pa. 
States,  96  N.  Y.  227.  St.  382. 

2  Kohl  V.  United  States,  91  U.  S.  367.  ^  United  States  v.  R.  R.  Bridge  Co.,  6 

3  Matter    of    the    Petition  of    United  McLean,  517. 

States,  supra.  ^  Taylor  v.   Porter,  4  Hill,  140;  Hoye 

*  Trombley   v.    Humjjhrey,    23    Mich.     v.  Swan,  5  Md.  237. 
471.  

several  States,  moreover,  constitutions  the  owner  is  the  effect  produced  upon  the 
have  been  adopted  or  statutes  passed  giv-  land  by  the  iinpairnient  of  the  easement, 
ing  compensation  where  property  is  "  in-  Such  an  injury  is  therefore  wholly  conse- 
jured  or  damaged."  quential.  Bohm  v.  The  Met.  El.  Ry.  Co., 
In  the  development  of  the  law  of  emi-  supra.  In  ascertaining  the  extent  of  this 
nent  domain,  the  word  "  property  "  has  consequential  injury,  the  benefits,  if  any, 
acquired  a  broader  meaning  than  it  at  to  the  land,  caused  by  the  presence  and 
first  received.  Thus,  in  the  elevated  rail-  operation  of  the  elevated  road,  must  be 
road  suits  in  New  York,  referred  to  in  taken  into  account.  Newman  r.  JL  E.  Ry. 
the  text,  it  has  been  adjudged  that  the  Co.,  118  N.  Y.  618  ;  Bohm  v.  M.  E.  Ry.Cc, 
right  of  an  owner  of  land  abutting  on  a  supra;  Bwtro  v.  M.  Ry.  Co.,  137  N.  Y.  592  ; 
street,  to  light,  air,  and  access  is  an  ease-  Bischoff  v.  N.  Y.  E.  Ry.  Co.,  138  N.  Y.  257. 
ment,  and  is  property,  and  that  any  im-  Further  consequential  injuries,  such  as 
pairment  thereof  is  a  taking  within  the  those  due  to  noise,  vibration,  etc.,  are  not 
constitutional  provision.  As  these  ease-  invasions  of  a  property  right  to  be  conipen- 
ments  are  not  considered  as  possessing  sated  for  under  the  rules  of  eminent  do- 
value  separately  and  apart  from  the  land,  main.  American  Bank  Note  Co.  v.  N.  Y. 
it  follows  that  the  real  and  only  injury  to  E.  Ry.  Co.,  129  N.  Y.  252,  271. 


430  THE  LAW  OF  PERSOXAL  PROPERTY. 

The  decision  in  Taylor  v.  Porter  led  to  a  provision  in  the  New 
York  constitution,  providing  a  mode  of  laying  out  private  roads.i 

When  property  has  been  obtained  through  the  law  of  eminent 
domain  for  one  public  purpose,  there  is  nothing  to  prevent  its 
being  again  condemned  for  a  paramount  public  purpose.^ 

Section  IV.  Public  Necessity.  —  By  this  expression  is  meant 
the  sacrifice  of  private  property  for  the  public  welfare,  under 
such  circumstances  of  overruling  necessity  that  no  compensation 
is  required.  This  subject  is  frequently  alluded  to  in  the  old  law- 
books. Thus,  KiNGSMiL,  J.,  in  the  Year  Books  of  Henry  VII.^ 
says  that,  as  to  a  thing  which  concerns  the  commonwealth,  one  can 
justify  a  trespass  in  order  to  take  goods  out  of  the  house,  when 
the  safety  of  the  goods  is  concerned,  or  to  even  break  down  a 
house  for  the  same  purpose.  And  so  in  time  of  war  one  can 
justify  an  entry  into  another's  land  to  make  a  bulwark  in  defence 
of  the  king  and  the  realm,  and  these  things  are  justifiable  and 
lawful  for  the  maintenance  of  the  commonwealth.  Some  years 
later,  it  is  said  by  Shelly,  J.,  that  the  "commonwealth"  is  to  be 
preferred  before  "  private  wealth,"  since  for  the  commonwealth 
one  may  suffer  damage,  so  that,  for  example,  a  house  shall  be 
"  plucked  down  "  if  the  next  house  be  on  fire,  and  suburbs  of 
cities  shall  be  plucked  down  in  time  of  war,  for  this  is  for  the  com- 
monwealth, and  a  thing  that  is  for  the  commonwealth  any  one  can 
do  without  being  liable  to  an  action.*  These  principles  were 
followed  in  a  famous  case  known  as  the  Saltpetre  Case.^ 

This  general  doctrine,  so  far  as  it  may  justify  the  destruction 
of  property  to  prevent  the  spread  of  a  contiagration,  has  been 
carefully  considered  in  a  number  of  cases,  particularly  in  some 
growing  out  of  the  great  fire  in  New  York  in  1835.^  It  has  been 
specifically  decided  that  the  destruction  by  public  authority  of 
private  property  to  arrest  a  fire  is  not  "  taking  property  for  public 
use,"  within  the  meaning  of  the  Constitution."  There  is,  how- 
ever, a  statute  upon  this  matter  applicable  to  the  city  of  New 
York,  providing  that  if  the  city  magistracy  order  a  building  to  be 
destroyed  to  stop  a  conflagration,  the  owner  of  the  building  must 
be  indemnified  in  a  prescribed  manner,  unless  it  would,  without 
such  act,  have  been  inevitably  destroyed.^     This  statute  has  been 

1  Art.  L,  §  7.  3  Zab.  (IST.  J.)  9;  Hale  v.  Lawrence,  Id. 

2  Crosby  v.  Hanover,  36  N.  H.  404  ;  590.  See  also  Beacli  v.  Trudgain,  2  Grat. 
Central  Bridge  Corp.  v.  Lowell,  4  Gray,     (Va.)  219. 

474.  "^  McDonald  v.   Red  Wing,   13  Minn. 

3  21  Hen.  VIT.  27.  38. 

*  Year  Book,  13  Hen.  VIIL  fol.  15.  8  2  Rev.  Laws,  368,  369  ;  also.   Laws 
8  Part  12,  Coke's  Rep.  12.                          of    18S2,   ch.    410    (Consolidation    Act), 

*  American   Print  Works  v.  Lawrence,     §  450. 


THE   QUALIFICATIONS   OF   OWNERSHIP.  431 

construed  in  several  cases.  It  is  decided  that  it  only  applies  to 
the  owner  of  the  building,  or  some  one  having  an  interest  therein, 
and  accordingly  would  not  extend  so  far  as  to  protect  the  owner 
of  goods  stored  in  a  building  belonging  to  another  person.  Such 
a  person  would  be  left  to  the  rules  of  the  common  law. 

In  the  course  of  the  discussions  growing  out  of  these  cases,  it 
became  important  to  consider  the  distinction  between  the  cases 
where  property  was  taken  for  "  public  use,"  so  as  to  make  com- 
pensation necessary,  and  where  it  was  taken  from  necessity^  so 
that  the  rule  of  compensation  could  not  be  invoked.  Reference 
to  these  discussions  will  be  found  in  a  note.  The  true  theory 
is,  that  most  of  the  so-called  cases  of  "  necessity  "  are  really  a 
branch  of  the  "  police  power  "  in  a  State,  and  may  properly  be 
placed  under  that  head.  No  rational  distinction  can  be  drawn 
between  the  case  where  property  is  necessarily  destroyed  to  pre- 
vent a  conflagration,  and  where  a  destruction  is  made  to  prevent 
the  spread  of  a  disease  or  a  pestilence.  Each  depends  upon  the 
principle  that  the  "  safety  of  the  people  is  the  supreme  law."  i 

An  instance  of  the  same  kind  is  found  in  the  case  of  persons 
travelling  upon  a  public  highway  which  is  suddenly  out  of  repair, 
going  upon  adjacent  fields  without  permission  of  the  owner. 
This  is  confined  to  the  case  where  the  obstruction  is  sudden  and 
recent^  e.  g.,  a  fresh  fall  of  snow.^  This  is  held  to  be  the  exer- 
cise by  an  individual  of  a  public  right,  finding  its  justification  in 
necessity.  If  the  obstruction  is  neither  sudden  nor  recent,  its 
existence  is  really  imputable  to  the  neglect  of  the  public  authori- 
ties, and  so  not  necessary. 

Section  V.  Regulation  or  Destruction  of  private  Property  under 
the  so-called  "  Police  Powers  —  By  the  police  power  is  meant 
that  authority  in  the  State  which  regulates  private  affairs,  includ- 
ing the  control  and  management  of  property,  so  as  to  make  them 

1  The  old  cases  do  not  distinguish  ac-  Senator  Verplanck,  in   Stone  v.  Mayor 

curately  between  the  two  classes  of  cases,  of   New  York,  25  Wend.    157,  173,   and 

Thus,  the  "  Saltpetre  Case  "  treats  without  also  in  the  opinions  of  Broxson,  J.,  and 

distinction  the  erection  of  bulwarks  upon  of   Senators   Sherman    and   Porter,   in 

private  land  in  time  of  war,  and  the  de-  Russell  v.   Mayor  of  New  York,   2   Den. 

struction  of  property  to  prevent  the  spread  461.     A  note  of  the  reporter  to  the  last- 

of  a  fire.     The  former  instance  would  now  cited  case    on   page  491   shows  that  the 

clearly  be  regarded   as   a  case   under  the  court  in  another  cause,  involving  the  same 

rule  of  eminent  domain.     Mouse's  Case,  question  (Lawrence  v.  The  Mayor),  adopted 

Part  12,  Coke's  Pep.  63,  is  an  instance  of  the  opinion  of  Bronson,  J.,  above  refern-d 

liestructionunder  the  doctrine  of  necessity,  to,  as  a  sound  exposition  of  the  law,  and 

That  was  a  case  where,  for  the  safety  of  thus  sanctioned  the  proposition  that  this 

]iassengers,  heavy  merchandise  was  thrown  was  not  a  case  of  taking  private  property 

overboard  from  a  barge  in  a  storm.     The  for  public   use  within  the  meaning  of  the 

distinction    between   the    two    classes   of  Constitution, 
cases  is   clearly  shown  in  the  opinion  of         ^  Campbell  i'.  Race,  7  Cush.  408. 


432  THE    LAW    OF    PERSONAL   niOFEKTY. 

consist  with  the  public  welfare.  Sometimes  it  is  exercised  by 
the  State  itself,  and  again  by  municipalities,  or  by  public  officers, 
such  as  commissioners  of  highways.  When  properly  exercised, 
private  rights  must  yield  to  it. 

The  general  nature  of  the  police  power  has  been  defined  by  the 
Supreme  Court  of  the  United  States.^  While  it  is  conceded  to  be 
difficult  to  render  a  precise  definition  of  it,  it  is  said  to  be  clear 
that  it  does  extend  to  the  protection  of  the  lives,  health,  and  prop- 
erty of  the  citizens,  and  to  the  preservation  of  good  order  and  the 
public  morals.  The  legislature  cannot  divest  itself  of  the  power 
to  provide  for  these  objects.  They  belong  emphatically  to  that 
class  of  subjects  which  demand  the  application  of  the  maxim, 
salus  populi  suprema  lex? 

I.  The  relation  of  the  exercise  of  this  power  to  constitutional  jj^o- 
visions.  —  The  attempted  exercise  of  the  police  power  in  particular 
cases  may  be  obnoxious  on  two  constitutional  grounds  :  one,  that 
it  is  an  invasion  of  a  right  of  property,  and  another  that  the  legal 
proceedings  resorted  to  are  not  "  due  process  of  law."  These 
will  be  considered  separately. 

(1)  There  are  opposing  views  as  to  the  point  whether  the 
police  power  can  properly  so  be  exercised  as  to  destroy  vested 
riglits  of  property.  The  question  has  been  sharply  presented  as 
to  prohibitorj^  liquor  laws  acting  upon  liquor  then  in  existence 
so  as  practically  to  destroy  its  value.  In  a  New  York  case  such 
legislation  was  held  to  be  unconstitutional  and  void,  as  an  un- 
authorized invasion  of  the  right  of  property.^  On  the  other 
hand,  the  Supreme  Court  of  the  United  States  has  decided  that 
a  State  may  forbid  the  manufacture  and  sale  of  intoxicating 
liquors  as  a  beverage,  within  its  territory,  in  the  exercise  of  the 
police  power,  and  further,  may  declare  a  brewery  a  common  nui- 
sance because  it  produces  an  intoxicating  liquor  prohibited  by 
law  to  be  manufactured  and  sold.'*  (a) 

(2)  In  the  practical  exercise  of  the  police  power,  such  methods 
of  proceeding  must  be  resorted  to  as  are  usual  in  judicial  in- 
quiries. Property  is  not  to  be  taken  arbitrarily,  or  without  due 
notice  to  the  owners  and  a  reasonable  opportunity  to  be  heard. 
Under  this  head,  it  has  been  decided  that  in  a  seizure  of  prop- 
erty under  a  police  regulation,  the  law  must  provide  for  legal 

1  Beer  Co.  v.  Massachusetts,  97  U.  S.  3  Wynehamer  v.  The  People,  13  N.  Y. 
25,  33.                                                                   378. 

2  Lake  View  v.  Rose  Hill  Cemetery  *  Mii^ler  ?'.  Kansas  ;  Kansas  z>.  Ziebold, 
Co.,  70  111.  191.                                                123  U.  S.  623. 


(rt)  Kidd  V.  Pearson,  128  U.  S.  1 ;  Eileubecker  v.  Plymouth  County,  134  U.  S.  31. 


THE   QUALIFICATIONS   OF   OWNERSHIP.  433 

notice  to  the  owner  of  the  nature  and  cause  of  the  accusation,  as 
well  as  of  the  trial  of  the  question  whether  there  has  been  a 
violation  of  law.^  If  the  law  should  forbid  the  maintaining  of  an 
action  by  the  property  owner,  it  would  be  unconstitutional^  So 
if  the  owner's  remedy  be  unreasonably  clogged  or  hampered. ^ 

II.    Instances  of  the  valid  exercise  of  the  police  power. These 

are  very  numerous;  some  of  them  will  be  specified  in  this 
connection, 

(1)  The  licensing  and  prohibition  of  the  sale  of  intoxicating 
liquors.  This  class  of  laws  prevails  in  most,  if  not  all,  of  the 
States.  There  is  no  doubt  as  to  the  power  to  regulate  and  license. 
The  power  to  regulate,  however,  seems  to  imply  the  power  to 
prohibit,'*  and  there  is  no  reasonable  doubt  of  the  constitutionality 
of  prohibitory  liquor  laws  acting  in  futuro.  Sometimes  the  law 
assumes  the  form  of  prohibition  under  special  circumstances,  —  as, 
for  example,  where  a  religious  meeting  is  in  progress.^  The  more 
general  form  of  license  or  prohibition  is  equally  valid.^(a) 

(2)  The  prohibition  of  the  manufacture  and  sale  of  substitutes 
for  butter.' (5)     These  have  been  termed  "  oleomargarine  cases." 

(3)  Requirements  that  physicians  and  mid  wives  report  births 
and  deaths.^ 

(4)  Regulations  respecting  the  drainage  of  land  as  related  to 
public  welfare.^ 

1  Greene  v.  James,  2  Curtis  C.  Ct.  540  ;  Pierce  v.  New  Hampshire,  Ic"..  554  ; 
187.  State  v.  Wheeler,  25  Conn.  290  ;  Jones  v. 

2  Preston  v.  Drew,  33  Me.  558.  People,  14  111.   196 ;  Austin  v.  State,  10 

3  Saco  V.  Woodsum,  39  Me.  258.  To  Mo.  591  ;  State  v.  Gurney,  37  Me.  156  ; 
the  same  general  effect  are  Fisher  v.  Mc-  Met.  Board  of  E.xcise  v.  Barrie,  34  N.  Y. 
Girr,  1  Gray,  1  ;  State  v.  Snow,  3  R.  I.  64.  657. 

4  Cronin  v.  The  People,  82  N.  Y.  318.  ^  State   v.    Addin^ton,    12   Mo.     App. 

5  Com.  V.  Bearse,  132  Mass.  542  ;  214  ;  Powell  v.  Pennsylvania,  127  U.  S. 
State  V.  Read,  12  R.  I.  137.     Cf.  Dorman  678. 

V.  State,  34  Ala.  216.  8  I^obinson  v.  Hamilton,  60  la.  134. 

8  Thurlow  V.    Massachusetts,  5   How.  9  Donnelly  v.  Decker,  58  AVis.  461. 

U.  S.  504  ;  Fletcher  v.  Rhode  Island,  Id. 


(a)  A  State  statute  prohibiting  the  sale  effect  that  liquors  imported  into  a  State 

in  original  packages   of  liquor  manufac-  or  Territory  should  upon  their  arrival  be 

tured  in  and  brought  from  another  State  subject  to  the  police   regulation  of  such 

wasdeclaredby  the  United  States  Supreme  State    or   Territory,    whether  in   original 

Court  to  be  an  invalid  exercise  of  the  police  packages  or  otherwise.    26  Stat.  L.  313,  ch. 

power  because  repugnant  to  the  clause  in  728  (August  8,   1890)      This  statute  was 

the   Constitution  giving    Congress  power  declared   constitutional  in  Li  re  Rahrer, 

over  interstate  commerce.     See  Leisy   v.  140  U.  S    545. 

Hardin,  135  U.  S.  100,  overruling  Pierce  {b}  Commonwealth    v.    Huntley,    156 

V.   New  Hampshire,    5   How.   U.  S.  ^504.  Mass.    236 ;    People    v.    Arensberg,    105 

See  also  Bowman  v.  Chicago,  &c.  Railway  N.    Y.    123  :   AVaterbury   v.    Newton,  50 

Co.,  125  U.  S.   465.     These  decisions  led  N.  J   Law  Rep.  534. 
to  the  passage  of  a  law  by  Congress  to  the 

28 


434  THE   LAW   OF   PERSONAL   PROPERTY. 

(5)  Provisions  in  city  ordinances  requiring  fire  escapes.^ 

(6)  Regulations  concerning  the  speed  of  railroad  trains  through 
cities. 2 

(7)  Prohibition  of  the  pollution  of  reservoirs  and  the  streams 
supplying  them.^ 

(8)  Restrictions  on  the  sale  of  pistols  other  than  army  and 
navy  pistols.* 

(9)  Regulations  as  to  the  keeping  of  pool-tables  for  hire.^ 

(10)  Prohibition  of  the  disinterment  of  the  remains  of  the 
dead.^ 

(11)  Prohibition  of  the  sale  of  opium  except  by  medical  men.'^ 

(12)  Prohibition  of  the  erection  of  wooden  buildings  in  a  city 
within' specified  fire  limits.^ 

(13)  Prohibition  of  the  sale  of  coal-oil  not  bearing  a  specified 
fire  test.^ 

(14)  Prohibition  of  the  slaughtering  of  animals  within  pre- 
scribed limits.  In  this  connection  the  "  Slaughter  House  "  cases 
in  the  Supreme  Court  of  the  United  States  should  be  referred  to. 
The  facts  in  substance  were  that  the  legislature  of  Louisiana,  in  a 
large  district  of  1154  square  miles  (including  New  Orleans,  and 
containing  a  population  of  more  than  two  hundred  thousand 
people),  granted  to  a  corporation  the  exclusive  right  of  having 
slaughter-houses,  and  required  all  cattle  slaughtered  in  the  dis- 
trict to  be  slaughtered  there.  It  also  prescribed  pecuniary  fees 
to  be  paid  for  each  animal  slaughtered,  and  allowed  the  company 
to  retain  certain  parts  of  the  animal  itself.  It  was  held  that  this 
was  an  exercise  of  the  police  power  in  itself  perfectly  lawful  and 
in  no  way  forbidden  by  the  Thirteenth  and  Fourteenth  Amend- 
ments to  the  United  States  Constitution. ^^ 

On  similar  ground,  the  legislature  may  provide  that  specified 
persons  shall  have  exclusive  power  to  remove  dead  animals  from 
the  streets  of  a  city."  Moreover,  it  is  lawful  to  confer  exclu- 
sive privileges  in  other  cases  where  public  policy  is  involved, 

1  Fire  Dept.  of  N.  Y.  v.  Chapman,  10  352  ;  Aronheimer  v.  Stokley,  11  Phila. 
Daly,  377.  (Pa.)  283. 

2  Knobloch  v.  C.  M.  &  St.  P.  R.  R.  9  Wright  v.  C.  &  N.  W.  R.  R.  Co.,  7 
Co.,  31  Minn.  402.  111.  App."438 

3  State  V.  Wheeler,  44  N.  J.  Law,  88.  i«  Slaughter  House  Cases,  16  Wall.  36. 
*  Dabbs  V.  State,  39  Ark.  353;  State     Three  of  the  judges  dissented,  each  writing 

V.  Burgoyne,  7  Lea,  (Tenn.)  173.  an   opinion  ;   namely,    Field,   Bradley, 

^  Com.  V.  Kinsley,  133  Mass.  678.  and  Swayne,  JJ.     They  denied  that  this 

6  In  re  Wong    Yung  Quy,   6   Sawy.  was  a  police  regulation,  hut  said  that  it 

C.  Ct.  442.  was  in  the  nature  of  a  monopoly,  and  in 

''  State  V.  Ah  Chew,  16  Nev.  50.  contravention  of  the  Constitution. 

8  McKibbin  v.    Fort  Smith,  35   Ark.  "  River  Rendering  Co.  t;.  Behr,  7  Mo. 

App.  345. 


THE    QUALIFICATIONS    OF   OWNERSHIP.  435 

as  where  text-books  are  to  be  used  in  the  common  schools  of  the 
State.i 

(15)  The  State  may  on  similar  principles  regulate  modes  of 
travel,  as  by  requiring  that  locomotive  engines  shall  sound 
whistles,^  or  that  flagmen  shall  be  stationed  at  crossings,^  or  that 
trains  shall  stop  at  way  stations,^  and  it  may  regulate  the  issue 
and  taking  up  of  tickets  by  common  carriers.^  The  power  to 
regulate  may  be  exercised  to  the  inconvenience  of  adjoining 
owners.^ 

(16)  "  Police  power  "  is  largely  exercised  in  the  various  States 
through  the  medium  of  licenses  to  follow  a  trade,  pursuit,  or  avo- 
cation, such  as  a  license  to  keep  a  pool-table ;  ">  to  lawyers  to 
practise  ;^  to  keepers  of  private  markets  ;^  to  peddlers  of  sewing- 
machines  ;  ^^  to  brokers  in  real  estate  ;  ^^  and  to  hotel-keepers.^2 
Similar  principles  are  extended  to  market  regulations ;  ^^  also  to 
auctioneers  ;  i*  and  to  the  regulation  of  packing-houses  engaged 
in  the  packing  of  provisions.^^  (a) 

In  some  cases  State  interference  has  been  rested  on  special 
grounds,  as,  for  example,  because  the  interests  affected  by  it  have 
received  property  under  the  rules  of  eminent  domain,  e.  g.,  railways 
or  highways,  or  because  an  exclusive  privilege  has  been  granted 
by  the  State,  as  in  the  case  of  public  ferries.  State  regulation, 
however,  is  not  limited  by  such  facts  as  these.  The  police  power 
may  be  relied  upon  in  its  broad  form  as  stated  at  the  outset  of  this 
discussion. 

As  we  have  seen,  one  mode  of  exercising  the  police  power  is 
through  the  medium  of  a  license.  It  is  highly  important  to  dis- 
tinguish between  such  a  license  and  one  required  for  revenue  pur- 

1  Bancroft  v.  Thayer,  5  Sawy.  C.  Ct.  «  Machine  Co.  v.  Gage,  100  U.  S. 
502.  676. 

2  Pittsburgh,  &c.  R.  R.  Co.  v.  Brown,  "  City  of  Little  Rock  v.  Barton,  33 
67  Ind.  45.  Ark.  436. 

3D,    L.    &   W.    R.    R.    Co.    V.    East  ^'  City  of  St.   Louis  v.  Bircher,  7  Mo. 

Orange,  41  N.  J.  Law,  127.  App.  169. 

*  Davidson  v.  State,  4  Tex.  App.  545.  ^^  City  of  Bowling  Green  v.  Carson,  10 

5  Fry  V.  State,  63  Ind.  552.  Bush   (Ky.),  64  ;  State  u.   Gisch,  31  La. 

6  Textor  v.  B.  &  0.  R.  R.  Co.,  59  Md.  Ann,  544. 

63  1*  Goshen  v.  Kern,  63  Ind.  468. 

^  Com.  V.  Kinsley,  133  Mass.  578.  ^^  Chicago  Packing,  &c.  Co.  v.  Chicago, 

8  Wilmington  v.  Macks,  86  N.  C.  88.  88  111.  221. 

9  New   Orleans   v.    Dubarry,    33    La, 

Ann.  481.  

(a)  A    statute    fixing    the    maximum  is  constitutional.     People   v.    Budd,    117 

charp-e  for  elevating  grain  is  a  legitimate  N.  Y.  1  ;  on  appeal,  Budd  v.  New  York, 

exercise  of  the  police  power  over  a  busi-  143  U,  S.  517. 
ness  affected  with  a  public  interest,  and  so 


43G  THE  LAW  OF  PERSONAL  PROPERTY. 

poses.  The  latter  is  a  mere  revenue  measure,  and  has  in  it  no 
element  of  police  regulation.  It  is  but  an  exei'cise  of  the  power 
to  tax  in  a  particular  manner.  But  a  license  considered  as  a  police 
measure  cannot  properly  be  treated  as  a  mode  of  taxation.  Only 
a  reasonable  amount  should  be  exacted  for  the  purpose  of  properly 
carrying  out  the  provisions  of  the  license  law.  This  distinction  is 
of  great  consequence  in  determining  the  power  of  a  city  by  ordi- 
nance to  regulate  trades  and  occupations  by  means  of  licenses. 
It  may  be  that  when  the  object  is  to  regulate  exhibitions  and 
places  of  amusement,  a  greater  sum  may  properly  be  exacted 
under  the  police  power  than  in  the  case  of  ordinary  trades  and 
occupations.! 

A  license,  thus  regarded,  is  not  a  contract.  It  may  be  revoked 
at  pleasure.^  (a)  Accordingly,  if  one  under  a  license  purchases 
property  to  sell  again,  for  example,  pistols,  he  can  be  lawfully 
prohibited  by  a  police  regulation  from  selling  after  his  license  has 
expired,  particularly  if  sufficient  time  was  accorded  to  him  to 
sell  before  the  license  expired.^  The  true  theory  of  such  a  license 
is  that  it  is  but  a  permission  to  do  an  act  which  without  the  per- 
mission could  not  be  done.^ 

There  have  been  statutes  in  some  of  the  States  making  discri- 
mination, in  licensing  trades  or  occupations,  between  their  own 
citizens  and  those  of  other  States.  These  may  be  void  as  trench- 
ing upon  the  provisions  of  the  United  States  Constitution  concern- 
ing the  regulation  of  commerce.^  (h') 

The  mere  license  to  sell  is  not  of  itself  a  "  regulation  of  com- 
merce," but  a  regulation  of  the  privilege  of  selling.^  If,  how- 
ever, any  discrimination  be  made  in  favor  of  the  products  of  the 
State  as  against  those  of  other  States,  the  law  will  be  void.^  (c) 
Still,  a  mere  license  law  operating  upon  citizens  of  other  States 
solely  may  violate  that  other  clause  of  the  Constitution  ^  which 

1  This  distinction  is  well  stated,  with  ^  State  v.  Burgoj'ne,  7  Lea  (Tenn.),  173. 

citation    of  authorities,    in    No.    Hudson  *  Carrier    v.    Brannan,    3    Cal.     328  ; 

County  R.  R.  Co.  v.  Hoboken,  41  N.  J.  Metropolitan  Board  of  Excise  v.  Barrie,  34 

Law,  71.    A  tax  on  an  avocation  is  said  to  N.  Y.  657. 

be  a  true  tax,  in  People  v.  Equitable  Trust  5  City    of  Marshalltown  v     Blum,   58 

Co.,  96  N.  Y.  387,  396.     It  is  added  tliat  la.  184  ;  In  re  Watson,  15  Fed.  R.  511. 
unless  they  are  imposed  to  restrain  or  reg-  ^  Corson  v.  State,  57  Md.   251  ;  Howe 

ulate  some  obnoxious  trade  or  business.  Machine  Co.  ?\  Cage,  9  Baxter  (Tenn.),  518. 
such  taxes  must  receive  the  condemnation  ^  State  v.  Furbush,  72  Me.  493  ;  In  re 

of  enlightened  statesmanship.  Rudolph,  6  Savvy.  C.  Ct.,  295. 

■^  Com.  V.  Kinsley,  133  Mass.  578.  8  ^.rt.  IV.,  §  2,  cL  1. 


(«)  Sprayberry  v.  City  of  Atlanta,   87  (c)  See  Minnesota  v.  Barber,  136  U.  S. 

Ga.  120.  313. 

(b)  Crutcher  v.  Kentucky,  141  U.  S.  47. 


THE    QUALIFICATIOXS    OF   OWNERSHIP.  437 

secures  to  citizens  of  each  State  all  privileges  and  immunities  of 
citizens  in  the  several  States.  ^  (a) 

Under  the  police  power,  a  law  may  require  that  no  citizen  of  the 
State  shall  he  excluded  from  the  equal  enjoyment  of  the  facilities 
supplied  hy  the  owners  or  lessees  of  theatres  or  other  places 
of  amusement  by  reason  of  race,  color,  or  previous  condition  of 
servitude.^  (Z>) 

There  are,  of  course,  many  miscellaneous  regulations  which  may 
be  justified  under  the  police  power.  It  would  seem  that  it  would 
be  lawful,  for  example,  reasonably  to  regulate  in  cities  the  height 
to  which  apartment  or  tenement  houses  should  be  constructed 
upon  streets.^ 

The  State  in  the  practical  exercise  of  the  police  power  frequently 
vests  it  in  a  city  or  other  municipal  corporation.  Many  judicial 
questions  are  presented  from  that  point  of  view.  There  can  be  no 
doubt  as  to  the  general  propriety  of  such  a  delegation  in  matters 
of  local  importance.  The  inquiries  will  be  in  the  main  the  same 
as  where  the  State  itself  directly  exercises  it,  with  additional  ques- 
tions as  to  the  meaning  and  limitations  of  the  vesting  statutes. 
In  other  words,  there  will  be  two  general  inquiries :  firsts  What 
power  did  the  legislature  intend  to  vest  in  the  municipality  ?  This 
is  a  question  of  statutory  interpretation  or  construction.  SecondiT/, 
Is  the  power  conferred  lawful  in  its  nature  as  a  branch  of  the 
police  power  ?  This  last  point  will  be  determined  by  general 
rules  governing  police  power,  no  matter  by  what  authority  it 
may  be  exercised.* 

III.  Instances  of  the  umvarranted  exercise  of  the  police  poiver.  — 
A  State  cannot,  under  a  pretended  exercise  of  the  police  power, 
impose  a  restriction  upon  the  individual  citizen  which  does  not 
in  fact  connect  itself  with  police  regulation.^  Every  citizen  has 
a  general  right  to  pursue  a  trade  or  business.  If  this  be  perfectly 
lawful  and  in  no  way  injurious  to  the  health  or  welfare  of  otliers, 
it  would  appear  that  it  should  not  be  prohibited,  though  it  may 
be  liable  to  just  taxation.  The  act  of  a  State  legislature  violating 
this  doctrine  may  be  ^dtra  vires  and  void. 

1  McGuire  v.  Parker,  32  La.  Ann.  832.  <  See,  for  details,  1  Dillon  on  :Municipal 

2  Penal  Code  of  N.  Y.  §383;  People  i'.  Corporations,  chapter  12  (4th  ed.1.  This  is 
King,  110  N.  Y.  418.  a  work  of  very  liigh   merit   and    warmly 

3  Dictum   in  People  v.    D'Oench,   111  connnended  to  students. 

N.  Y.  359,  361.  ^  Matter  of  Jacobs,  98  X.  Y.  93. 

(a)  The  granting   of  licenses    to    sell  violating    the    Fonrteenth     Amendment. 

li(luor  may  be  restricted  in  the  discretion  Trageser  v.  Gray,  73  ]Md.  250  ;  Welsh  i'. 

of  the  legislature  to  a  certain  class,  e.  g.,  to  The  State,  126  Ind.  71. 
citizens  of  the  United  States  of  temperate  b)  See  ch.  602,  Laws  of  1893,  amend- 

habits  and  good  moral  character,  without  ing  §  383  of  the  Penal  Code. 


438  THE  LAW  OF  PERSONAL  PROPERTY. 

It  is  quite  plain  that  a  legislature  cannot  by  its  own  mere  fiat 
make  a  particular  matter  a  branch  of  the  police  power.  The  sub- 
ject to  be  regulated  must  be  within  the  police  power  before  the  law 
is  passed  which  regulates  or  suppresses  it.  Whether  a  particular 
law  is  justilied  by  the  police  power  is  purely  a  judicial  question 
for  the  courts.  It  is  a  preliminary  matter,  and  must  exist  as  a 
basis  for  the  law  to  control  it.  If  that  be  so  adjudicated,  then  the 
expediency  of  the  exercise  of  the  power  in  any  i)articular  instance 
is  wholly  a  matter  of  legislative  discretion.  The  sole  question  for 
the  courts  is,  does  the  "  police  power  "  embrace  the  legislation  in 
question. 

Under  this  rule  the  legislature  has  no  power  to  prohibit  the 
manufacture  of  cigars  by  tenants  of  tenement  houses  in  their 
rooms.i  A  city  ordinance  conferred  unlimited  power  on  certain 
officials  to  grant  or  refuse  leave  to  carry  on  public  laundries  in  a 
city  or  municipality.  In  the  exercise  of  this  power,  a  discrimina- 
tion was  made  wholly  against  Chinamen.  This  was  declared  to 
be  unlawful.^ 

It  is  not  within  the  police  power  to  prohibit  the  manufacture  or 
sale  for  food  of  any  substitute  for  butter  or  cheese  produced  from 
pure,  unadulterated  cream  or  milk  ;  ^  though  it  would  be  lawful  to 
prohibit  the  use  of  ingredients  not  necessary  or  essential  to  the 
manufactured  article  itself,  with  the  view  of  giving  it  the  sem- 
blance of  butter.  This  would  be  a  device  to  mislead  or  deceive 
which  the  legislature  has  the  power  to  restrain.* 

Without  citing  additional  instances,  the  general  result  is  that 
while  legislative  power  is  broad  and  ample  to  regulate  the  acts  of 
individuals,  so  as  to  promote  the  public  welfare,  and,  in  case  of  a 
conflict  with  individual  interests  and  the  public  good,  to  cause  the 
former  to  give  way,  yet  the  mere  arbitrary  exercise  of  restraint 
or  regulation  of  individual  acts  is  not  to  be  tolerated,  where  such 
acts  are  innocent,  and  no  public  good  is  to  be  achieved  by  their 
restraint  or  prohibition.  The  "  police  power,"  though  indispen- 
sable in  a  civilized  country,  is  a  dangerous  one,  being  capable  of 
great  abuse,  and  no  invasion  of  the  liberty  or  property  of  a  citizen 
should  be  allowed,  unless  public  ends  require  it  or  would  be 
apparently  promoted  by  it.^ 

1  Matter  of  Jacobs,  98  N.  Y.  98.  678,    upholding  similar  legislation  ;  also 

2  Yick  Wo  V.  Hopkins,  118  U.  S.  356.  ante,  p.  433. 

3  People  V.  Marx,  99  N.  Y.  377.  *  Reference   may   be  made,  upon   this 
*  People  V.  Arensberg,  103  N.  Y.  388.  aspect  of  the  subject,  to  People  v.  Gillson, 

See  also  Powell  v.  Pennsylvania,  127  U.  S.     109  N.  Y.  389. 


PART   11^ 

DISTINCTIONS  PECULIAR  TO  PERSONAL  PROPERTY. 


CHAPTER    I. 


ATTRIBUTES    OF    OWNERSHIP,    INCLUDING    THE    POWER    TO    USE, 
SELL,   EXCHANGE,   ETC. 

Various  terms  are  used  to  indicate  personal  property.  Amonsr 
these  may  be  mentioned  goods,  chattels,  wares,  merchandise,  and 
things  (either  in  possession  or  "in  action").  These  words,  for 
the  most  part,  may  be  used  indiscriminately.  In  the  matter  of  the 
construction  of  written  instruments  in  which  they  are  found,  — 
such  as  wills  or  statutes,  —  differences  in  their  meaning  may 
become  important.  The  word  "  chattel "  has  a  very  broad  and 
comprehensive  meaning,  including  movable  property  in  every 
variety  of  form.  The  phrase  "  thing  in  action  "  is  used  of  rights 
from  the  point  of  view  of  their  being  enforceable  in  a  court  of 
justice,  including  both  contracts  and  causes  of  action  springing 
from  a  tort  or  wrong. 

Section  I.  The  Power  to  sell  or  exchange.  —  It  is  a  well-settled 
rule  that  the  right  of  property  in  chattels  includes  the  free  and 
unfettered  right  on  the  part  of  the  owner  to  make  use  of  them 
and  dispose  of  them  as  he  may  see  fit,  in  the  way  of  enjoyment 
or  profit,  unless  his  act  be  inconsistent  with  the  public  welfare. 
This  clear  right  is  secured  by  constitutional  provisions.  These 
have  already  been  noticed  while  discussing  the  police  power. 

The  right  to  convey  land  did  not  exist  under  the  feudal  system. 
Under  the  relation  of  feudal  lord  and  vassal,  the  land,  though 
apparently  transferred  in  full  ownership  or  "  in  fee,"  was  assumed 
to  have  been  granted  in  confidence  in  such  a  way  as  to  create  a 
personal  relation,  so  that  the  lord  could  not  sell  his  interest,  per- 
haps for  a  money  rent  or  services,  without  the  consent  of  the 
vassal,  or  the  latter  without  the  consent  of  the  lord.  This  rule  led 
to  a  practice,  which  was  recognized  in  law,  that  the  lord  might  law- 
fully exact  from  the  vassal  (grantor)  a  sum  of  money  for  allowing 
him  to  alienate  or  convey  the  property.     This  was  termed  a  "  fine 


440  THE  LAW  OF  PEKSONAL  PKOPEKTY. 

for  alienation."  A  statute  of  great  importance  was  enacted  in  the 
eighteenth  year  of  Edvv^ard  I.  (Statute  of  Westminster  IIl.),^  which 
permitted  a  sale  so  that  a  purchaser  would  hold  the  land  bought 
by  him  of  the  "  chief  lord,"  and  not  of  the  vendor.  The  conse- 
quence was  that  on  a  second  sale  no  "  fine  for  alienation  "  could  be 
exacted.  The  land  was  freely  alienable.  This  statute  does  not  pre- 
vent restrictions  upon  the  assignment  of  a  limited  or  partial  inter- 
est, e.  g.,  a  lease.  It  has  generally  been  re-enacted  in  this  country. 
It  has  been  decided  in  New  York,  where  the  statute  prevails,  that 
a  clause  in  a  conveyance  reserving  to  a  grantor  a  right  to  exact  a 
sum  of  money  on  a  sale  by  his  vendee,  is  repugnant  to  the  nature 
of  the  estate,  and  void.^  Such  clauses  frequently  exacted  as  much 
as  a  quarter  of  the  purchase-money  oh  a  second  sale,  and  were 
known  as  "  quarter  sales." 

No  such  general  rule  ever  prevailed  as  to  personal  property. 
Without  freedom  of  sale  or  exchange,  ownership  is  not  com- 
plete. Many  movable  articles  are  produced  in  great  excess  of  the 
wants  of  the  producer.  To  deny  the  right  of  sale  would  be  to 
make  the  article  comparatively  valueless,  and  to  check  and  em- 
barrass production.  In  case  of  sale,  the  unrestricted  right  to 
make  a  succeeding  sale  passes  to  a  purchaser.  If  one  should 
attempt  to  restrict  a  subsequent  transfer,  the  restriction  would  be 
inoperative  and  void. 

The  validity  of  this  rule,  as  applicable  to  personal  property,  is 
shown  in  the  decisions  upon  the  laws  prohibiting  the  sale  of 
ardent  spirits.  To  test  the  question,  let  it  be  assumed  that  ardent 
spirits  have  been  and  are  at  this  moment  "  property,"  and  so 
recognized  by  the  laws.  A  law  is  then  passed  that  ardent  spirits 
shall  not  be  sold  except,  perhaps,  for  medicinal  purposes.  The 
existing  owners  are  thus  deprived  of  the  general  power  of  sale. 
The  question,  then,  is,  has  there  been  a  violation  of  a  right  of 
property  ? 

This  question  was  discussed,  as  a  constitutional  question,  with 
great  care  in  a  case  in  New  York.^  It  was  there  decided  that  such 
a  law  substantially  destroyed  the  ownership  in  intoxicating  liquors 
at  the  time  vested  in  persons  within  the  State,  and  so  violated 
the  constitutional  provision  that  a  person  shall  not  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law.  Such  a  law 
might  be  enacted  if  it  were  prospective  in  its  operation.* 

1  18  Edw.  I.  c.  1,  known  as  the  stat-  pared  with  Mugler  v.  Kansas,  123  U.  S. 
ute  of  Quia  Emptores.  623,  to  the  effect  that  snch  a  law,  though 

2  De  Peyster  v.  Michael,  6  N.  Y.  467.      an   invasion  of  the  right  of  property,  is 
8  Wynehamer  v.  Tlie  People,  13  N.  Y.     justifiable    under    the    "  police    power." 

378.  ^Ante,  p.  432. 


This  decision  must,  however,  be  com- 


ATTRIBUTES   OF   OWNERSHIP.  441 

Similar  rules  would  apply  to  the  right  of  an  owner  to  create 
temporary  or  limited  interests  in  his  property,  e.  g.,  to  pled^i-e  it. 
Rules  of  public  policy  may,  however,  in  some  instances,  inter- 
vene to  prevent  transfers.  These  are  unobjectionable,  particularly 
when  not  retrospective.  Prominent  among  such  rules  are  those 
which  forbid  the  assignment  of  mere  rights  of  action,  perhaps  to 
prevent  litigation,  or  with  a  view  to  secure  an  income  without 
anticipation,  or  on  public  grounds,  as,  for  instance,  salaries  of 
public  officers  not  yet  due,  or  seamen's  wages,  or  a  life  insurance 
held  by  a  married  woman  upon  her  husband's  life.  Rules  of  this 
kind  for  the  most  part  originate  in  statute,  and  are  to  be  treated 
as  exceptions  to  a  general  rule,  justified  by  the  special  circum- 
stances of  the  case. 

Section  II.  The  Right  to  abandon.  —  Ownership  of  personal 
property  appears  also  to  include  not  only  the  power  to  give  it 
away  to  another,  but  also  the  right  to  abandon  or  destroy  it, 
having  due  regard  to  the  rights  of  others. 

The  right  to  abandon  is  not,  however,  very  well  settled  in  the 
decisions.  It  has  been  presented  to  the  courts  as  a  question  of 
liability  on  the  part  of  an  owner,  as  where  a  ship  has  been  sunk 
by  an  unavoidable  accident  in  a  public  navigable  river.  It  has 
been  held,  in  such  a  case,  that  in  some  instances  on  abandonment 
of  the  possession  and  control  of  the  ship  all  liability  ceases.^  It 
has,  however,  been  decided  in  this  country  that  an  abandonment 
at  sea  does  not  divest  the  owner  of  his  property .^  In  the  State 
of  Louisiana,  abandonment  may  take  place  by  force  of  the  Revised 
Civil  Code,  §  3448.  Decisions  of  the  courts  will  be  found  in  a 
note.-^ 

Section  III.  The  Power  to  dispose  of  Property  hy  Will.  —  It 
may  be  doubted  whether  the  power  to  dispose  of  property  by  will 
is  fairly  to  be  implied  from  ownership.  The  power  of  disposing 
of  personal  property  by  will  appears  to  be  coeval  with  the  common 
law.  The  general  power  to  devise  real  estate  did  not  exist  until 
the  year  1540,  except  in  certain  localities,  by  custom.  In  the 
year  just  named,  general  power  to  devise  land  was  conferred 
by  statute.* 

A  distinguished  writer  is  of  opinion  that  a  true  power  of  devis- 
ing or  bequeathing  property  originally  existed  in  no  society 
except  the  Roman.     He  accordingly  turns  to  Roman   jurispru- 

1  White  V.  Crisp,  10  Exch.  312.  See  McGregor  v.  Ball,  4  1(1.289,  on  an  Arkan- 
also  Brown  v.  Mallett,  5  C.  B.  599.  sas  statute. 

2  Whitwell  V.  Wells,  24  Pick.  25.  *  32  Hen.  VIII.  c.  1,  as  supplemented 
'  Hereford  v.  Police  Jury,  4  La.  Ann.     by  34  Id.  c.   5. 

172  ;  Creevy  v.    Breedlove,  12   Id.   745  ; 


442  THE  LAW  OF  TEKSONAL  PEOPERTY. 

deiice  for  the  source  of  all  our  modern  ideas  respecting  wills. 
The  whole  subject  is  from  this  point  of  view  to  be  considered  his- 
torically, by  tracing  the  origin  and  progress  of  the  idea  of  testa- 
tion in  the  Roman  law,  and  its  adoption  in  modern  Europe  down 
to  our  own  time. 

Tlie  original  theory  of  a  will  was  that  it  was  an  act  of  legisla- 
tion, occurring  at  Rome  in  the  peaceable  assemblies  of  the  people, 
or  while  they  were  engaged  in  a  military  campaign.^  (a)  This 
method  was  used  by  the  patricians  alone,  as  the  plebeians  had  no 
standing  in  the  assembly  referred  to.  The  wills  thus  made  were 
entirely  oral.  The  general  right  to  make  a  will  is  recognized  in 
the  Twelve  Tables.^  It  would  appear  that  the  clause  to  this 
effect  was  framed  to  allow  the  plebeians  to  make  a  will.  There 
thus  came  into  use  the  will  by  a  fictitious  sale  or  conveyance, 
called  "^:»er  aes  et  libram,''^  or  "by  copper  and  scales."  This 
was  made  in  the  presence  of  five  witnesses  and  a  balance- 
holder,  together  with  the  fictitious  purchaser,  or,  as  then  called, 
"  heir." 

This  form  of  will  was  thus  a  conveyance  inter  vivos,  by  which, 
through  certain  prescribed  forms,  the  testator  passed  over  his 
estate  to  his  "  heir,"  or,  as  we  would  say,  devisee  or  legatee.  No 
writing  was  then  necessary.  The  peculiarity  of  it  was  that  it  was 
irrevocable ;  so  that  the  testator  was  henceforward  at  the  mercy 
of  the  fictitious  purchaser.  Wills  were,  therefore,  as  a  rule  proba- 
bly made  only  when  the  testator  supposed  himself  to  be  near  his 
end.  By-and-by,  in  the  course  of  judicial  decision,  the  prcetor  (or 
Roman  judge)  introduced  a  less  formal  method,  whereby  the  real 
intent  of  the  conveyance  could  be  disclosed  in  a  writing,  in  the 
presence  of  seven  witnesses,  who  affixed  their  seals  to  the  outside 
as  fastenings,  so  that  it  could  not  be  broken  open.  At  first,  the 
devisee  (purchaser)  was  necessarily  informed  of  his  rights,  so  that 
wills  became  immediately  public  ;  when  the  praetor's  method  took 
its  place,  the  conveyance  (^per  aes  et  lihram)  became  a  mere  form. 
The  accompanying  writing  disclosed  the  testator's  intentions, 
which  might  be  secret,  and  hence  revocable.     The  next  step  was 

1  In  the  former  case  it  was  said  to  be  2  Maine's  Ancient  Law  (11th  Ed.),  202. 
made  in  the  Comitia  Calata,  and  in  the  Pater  familias  uti  de  pecunid  tuteldve  rei 
latter,  in  procindu.  suae  legdssit,  ita  jus  esto. 


{a)  The   theory   that    the   making  of  note,  where   the  doctrine  of  the  text  is 

wills  in  the  Comitia  Calata  was  a  legis-  adopted.    Almost  nothing  is  known  of  the 

lative  act  is  combated  by  Sir  Henry  Maine,  nature  of  the  will  in  procindu.     Moyle 

Ancient  Law  (11th  ed.),  p.  199.     But  see  states  that  it  also  was  an  act  of  legisla- 

Hunter's  Roman  Law,  p.  766,  and  Moyle's  tion  of  the  whole  popuhcs  engaged  in  a 

Institutes  of  Justinian,  vol.   1,    p.    235,  campaign  in  the  field. 


ATTRIBUTES   OF    OWNERSHIP.  443 

taken  after  the  empire  was  established,  and  signing  by  the  Avit- 
nesses  became  necessary. 

There  were  thus,  in  the  time  of  Justinian,  three  historical 
sources  of  a  Roman  will,  and  in  general  controlling  its  validity 
and  execution :  the  witnesses  and  the  requirement  of  their  con- 
tinuous presence  together,  in  order  to  publish  the  will,  from  the 
old  law  {jus  civile) ;  the  seals,  and  the  number  of  the  witnesses, 
from  the  praetor's  edict ;  and  the  subscribing  by  the  testator  and 
the  witnesses,  from  the  imperial  constitutions.^  But  even  down 
to  this  time  the  oral  will,  in  the  presence  of  seven  witnesses,  could 
be  adopted.2 

The  progress  in  this  law  through  the  praetor's  edict  resembled 
to  some  extent  the  development  of  the  principles  of  equity  juris- 
prudence. The  formal  conveyance  by  the  testator  conferred  the 
legal  title  to  the  property  upon  the  transferee,  while  the  equitable 
title  was  created  by  the  writing,  which  the  praetor  or  judge  would 
cause  the  holder  of  the  formal  title  to  respect.  After  a  short 
period  of  possession,  the  equitable  owner  was  clothed  by  a  legal 
rule  with  the  absolute  title  as  against  all  claimants. 

The  law,  having  reached  this  stage,  was,  after  the  destruction 
of  the  Roman  empire,  brought  down  to  modern  times  through  the 
medium  of  the  church  or  ecclesiastical  courts,  which,  from  an 
early  period,  had  the  cognizance  of  wills  of  personal  property  ; 
though  wills  of  real  estate  could  not  be  regularly  made,  as 
has  been  seen,  until  a  statute  was  enacted  in  the  reign  of 
Henry  VIII. 

The  right  to  make  a  will  has  been  declared  in  this  country  to  be 
a  creature  of  positive  law,  and  not  a  natural  right. ^ 

Section  IV.  Succession  to  the  Property  of  an  Owner  dying  in- 
testate. —  A  similar  question  may  be  raised  as  to  this  point.  Is 
succession  derived  from  the  law  of  nature,  or  is  it  a  mere  positive 
regulation  ?     Is  it  an  incident  of  property  ? 

As  a  matter  of  philosophy,  it  is  difficult  to  see  how  tlie  rights  of 
property  in  a  particular  owner  can  be  prolonged  to  his  kindred 
after  his  death.  Succession  is,  no  doubt,  an  older  conception  than 
that  of  testamentary  disposition.  If  it  be  conceded,  as  is  now 
claimed  by  many  leading  jurists,  that  the  idea  of  property  is  closely 
connected  in  its  origin  with  that  of  the  family,  and  that  under  the 
patriarchal  system  the  family  was  represented  by  its  head,  then 
the  step  is  a  natural  one  to  the  proposition  that  on  the  death  of  the 
head  some  one  should  stand  in  his  place  and  represent  him,  not 

1  Justinian's  Institutes,  Book  II.,  Tit.  »  Patton  v.  Patton,  39  Ohio  St.  590, 
10,  §  3.  597. 

2  Id.  §  14. 


444  THE  LAW  OF  PEKSONAL  PROPERTY. 

merely  to  the  members  of  the  family  group,  but  to  other  families 
and  strangers.  Succession  by  inheritance  is  thus  a  natural  off- 
shoot from  patriarclial  families.  It  closely  resembles  the  law  of 
corporations  sole,  where  the  corporate  power  is  continued  from 
predecessor  to  successor.  It  is  not  necessary,  however,  to 
conceive  of  one  person  only  as  successor.  There  may  be  sev- 
eral co-successors,  or  co-heirs,  taken  together,  representing  their 
predecessor. 

The  oldest  idea  of  succession,  viewed  historically,  seems  to  be 
that  of  the  legal  continuation  of  the  existence  of  tlie  former 
proprietor  in  his  successor.  The  latter  not  only  took  all  the 
decedent's  rights,  but  assumed  all  his  liabilities.  He  was  a  so- 
called  universal  heir.  The  former  owner,  though  in  fact  dead, 
lived  on  in  law.  This  idea  has  been  modified  in  modern  times  so 
as  to  relieve  the  heir  or  other  successor  from  legal  responsibility, 
except  to  the  extent  of  assets  received  from  the  former  proprietor, 
his  predecessor. 

Succession  as  growing  out  of  family  tics  must  from  an  early 
period  have  depended  upon  kinship.  A  leading  use  of  a  will  at 
the  outset  was  to  provide  for  testamentary  succession  where  there 
was  a  default  of  kindred.  There  is,  even  in  modern  days,  a  condi- 
tion of  unstable  equilibrium  in  the  law  in  respect  to  the  conflicting 
claims  of  the  kindred  to  the  succession,  and  of  the  right  of  the 
testator  to  dispose  of  his  property  freely  by  his  will.  In  the 
Roman  law,  there  were  strong  restraints  upon  the  disinheriting 
of  children.  There  was  a  special  remedy  given  to  complaining 
children  against  the  will  of  a  father  who  had  thwarted  their  just 
and  proper  claims,  and  reciprocally  to  parents  against  an  undutiful 
will  made  by  children.  If  nothing  was  left  in  either  case,  there 
was  a  theory  of  mental  unsoundness,  which  did  not  mean  true  in- 
sanity, but  such  a  disregard  of  duty  as  to  show  a  want  of  that 
affection  to  which  a  party  so  closely  related  is  entitled.  In  any 
event,  a  child  was  held  to  be  entitled  to  one  fourth  of  a  parent's 
estate.  In  England,  there  has  been  a  strong  tendency  in  favor  of 
the  utmost  liberty  of  testation,  except  in  the  case  of  lands  given  to 
charitable  purposes.  In  France,  the  Roman  theory  has  prevailed 
in  modern  days,  and  the  code  to  a  large  extent  denies  the  power 
of  making  a  will  in  case  the  owner  of  property  leaves  children. 
The  development  of  thought  in  some  of  the  American  States 
closely  resembles  that  recognizable  in  England,  even  to  the  dis- 
paragement of  bestowments  upon  charitable  institutions. 

A  word  should  be  added  as  to  primogeniture,  or  succession  of 
the  oldest  son  to  the  land  of  his  ancestor.  The  older  systems  of 
law  do  not  draw  this  distinction  between  the  oldest  son  and  the 


ATTRIBUTES   OF   OWNEESHIP.  445 

other  children,  hut  admit  equal  inheritance  and  co-heirship.  This 
is  true  as  a  matter  of  property  simi)ly  ;  but  \vhen  political  authority/ 
is  involved,  it  is  almost  an  essential  idea  that  the  headship  of  a 
family  should  be  vested  in  a  single  person.  This  was  the  plain 
requirement  of  the  middle  ages.  Kingly  power  being  feeble,  the 
feudal  lord  closely  resembled  a  patriarchal  chieftain,  and  was  the 
recognized  head  of  all  to  whom  he  was  bound  by  family  and  social 
ties.  True,  as  representing  the  property  of  an  ancestor,  he  would 
naturally  be  under  responsibilities  to  the  other  members  of  the 
family,  to  permit  them  to  participate  in  the  benefits  he  received. 
At  this  time  law  had  come  to  treat  the  power  over  property  as 
equivalent  to  ownership.  His  rights  were  magnified  at  the  expense 
of  his  duties,  and  so  he  was  soon  treated  as  absolute  owner.  Couple 
with  this  the  power  of  his  ancestor  to  make  a  will  of  property  so 
far  as  it  belonged  to  him  as  owner,  and  the  present  law  of  England 
is  reached,  which  briefly  stated  is,  priinogenlture  prevails  in  the 
inheritance  of  land,  unless  there  is  a  will  to  the  contrary.     ' 

As  to  the  succession  to  personal  property,  the  result  of  the 
authorities,  after  great  conflict  of  opinion  among  the  most  dis- 
tinguished jurists,  is  that  if  an  owner  died  without  leaving  hus- 
band, widow,  or  kindred,  the  goods  went  to  the  king,  as  being 
without  an  owner  and  so  bona  vacantia.  It  is  not  the  correct  view 
that  the  church  had  any  interest  in  the  property,  as  some  maintain. 
It  had  merely  the  right  or  duty  of  jurisdiction  or  administration, 
and  the  right  of  possession  for  these  purposes.^  The  main  duties 
imposed  by  the  law  upon  the  bishops  (or  so-called  ordinaries)  was 
to  pay  the  debts  of  the  intestate,  and  to  apply  the  residue,  if  any, 
for  the  benefit  of  his  soul,  by  providing  for  the  chanting  of  masses. 
Ordinaries  appear  to  have  neglected  these  duties  in  a  flagrant 
manner,  so  that  an  Act  of  Parliament  was  passed  in  1357  (31 
Edward  III.  stat.  1.  c.  11)  directing  the  ordinaries  to  depute  the 
next  and  most  lawful  friends  to  administer  the  intestate's  goods, 
to  collect  his  rights  of  action,  to  pay  his  debts,  and  to  "  administer 
and  dispend  for  the  soul  of  the  dead."  These  administrators 
were  also  declared  to  be  accountable  to  the  ordinaries  in  the  same 
manner  as  executors. 

The  duty  to  "  dispend  for  the  soul  of  the  dead  "  continued  until 
the  time  of  the  Reformation,  when  that  was  deemed  to  be  a 
"  superstitious  use,"  opposed  to  public  policy,  and  prohibited. 
The  administrator,  accordingly,  after  payment  of  debts,  was  not 
accountable  for  the  residue.  The  same  principle  would  apply  to 
executors  after  payment  of  debts  and  legacies.  This  very  unsatis- 
factory state  of  the  law  continued  until  the  Statute  of  Distribu- 

1  Dyke  v.  AYalford,  5  Moore  P.  C.  Cas.  434,  488-496  (a.  d.  1846). 


446  THE  LAW  OF  PERSONAL  TEOPERTY. 

tions  was  passed  in  the  reign  of  Charles  II.  (22  &  23  Car.  II. 
c.  10,  as  explained  by  29  Id.  c.  3,  §  25),  which  required  all  ad- 
ministrators (except  a  husband)  to  distribute  the  surplus  in  a 
prescribed  manner  among  the  next  of  kin.  The  husband  was 
allowed  to  hold  the  property  of  his  wife  as  at  common  law,  with- 
out any  disturbance  by  the  statute.  It  may  be  said  that  the  Stat- 
ute of  Distributions  was  largely  derived  from  the  118th  Novel  of 
Justinian,  though  not  a  transcript  of  it.^ 

It  is  only  proposed  to  notice  in  this  connection  the  theory  on 
which  the  right  of  succession  is  to  be  rested.  The  details  of  the 
law  of  succession  will  be  found  in  a  succeeding  chapter  on  title 
by  will  and  in  case  of  intestacy .^ 

1  This   Novel  was  adopted  to  correct  affect  existing  claims,  and  that  it  shall  go 

inequalities  in  distribution  at  that  time  into  effect  at  a  future  specified  day,  thus 

existing.     It  consists  of  six  chapters  and  anticipating  two   of  the  most   beneficent 

an  epilogue.     Four  of  the   chapters  con-  checks  recognized  in  modern  times  upon 

cern  the  division  of  estates.    The  last  chap-  arbitrary  legislation, 
ter  (6th)  is  noticeable  from  the  fact  that  ^  p^gt,  p.  638. 

it  declares   that   the   new  rule  does  not 


CHAPTER    II. 

THE   DISTINCTION   BETWEEN   CORPOREAL   AND    INCORPOREAL 
PERSONAL  PROPERTY. 

Personal  property  is  either  corporeal  or  incorporeal.  Corpo- 
real property  is  the  object  of  the  senses,  and  may  be  seen  or 
touched.  This  is  the  ordinary  kind  of  property,  within  the  ob- 
servation of  all  men.  Incorporeal  property  exists  in  contemplation 
of  law,  and  has  only  an  ideal  existence.  Instances  are  the  rights 
of  an  author,  either  at  common  law  or  by  copyright ;  of  an  inven- 
tor ;  the  right  to  a  trade-mark,  or  to  the  "  good-will "  of  a  busi- 
ness. So  a  seat  in  the  Stock  Exchange  is  a  species  of  incorporeal 
property,  and  like  other  property  may  be  taken  by  legal  process 
for  the  owner's  debts.i  Rights  of  action,  termed  "things  in 
action,"  are  also  "  incorporeal."  ^ 

By  a  "  thing  in  action  "  is  meant  a  right  to  proceed  in  a  court 
of  justice  to  obtain  redress,  be  it  money  or  other  form  of  relief. 
The  most  generic  division  is,  things  in  action  springing  from 
contract,  and  those  derived  from  tort.  Thus,  one  may  have  a 
cause  of  action  for  a  libel  or  slander ;  for  trespass,  or  by  reason 
of  an  act  of  negligence.  All  of  these  are  things  in  action,  and 
are  the  subjects  of  ownership. 

Accordingly,  if  one  owns  a  document  evidencing  a  cause  of 
action,  e.  g.^  a  promissory  note  or  a  bond,  and  he  is  unlawfully 
deprived  of  it  by  a  wrong-doer,  he  may  bring  an  action  for  its 
conversion  and  recover  its  value.  In  this  case  he  would  proceed 
against  the  wrong-doer.  He  might,  however,  elect  to  regard  the 
title  as  still  in  himself,  and  sue  his  debtor  upon  the  contract 
as  though  he  had  not  been  deprived  of  the  possession  of  the 
instrument. 

Chattels  real  are  also  a  species  of  incorporeal  property.  Such 
property  exists  where  one  has  an  interest  in  land  for  a  definite 
period,  as,  for  example,  a  specified  number  of  years,  while  the 
ultimate  ownership,  termed  a  reversion,  is  in  another.  This  so- 
called  "  term  for  years  "  is  in  law  a  chattel,  no  matter  liow  long 

1  Powell  V.  Waldron,  89  N.  Y.  328  ;  ^  ^n    unlocated    land    certificate   is   a 

Grocers'  Bank  v.  Murphy,  60  How.  Pr.  426.     chattel  incorporeal.    Porter  i;.  Burnett,  CO 
But  see  Barclay  v.  Smith,  107  111.  349.  Tex.  220. 


448  THE  LAW  OF  PEKSONAL  PROPERTY. 

the  term  may  last.  As  it  however  partakes  of  the  nature  of  land, 
it  is  not  a  strict  chattel,  but  possesses  some  of  the  qualities  of 
real  property  ;  one  important  feature  considered  as  personal  prop- 
erty is  that  on  the  death  of  an  owner  it  passes  to  his  executors  or 
administrators,  and  not  to  liis  heirs.  A  widow  cannot  have  dower 
in  it,  nor  a  husband  curtesy. 

The  explanation  of  this  anomaly  in  the  law  is  a  historical  one. 
An  interest  in  a  "  term  for  years "  was  originally  treated  as  a 
contract.  This  is  of  course  a  "  thing  in  action  "  and  personal 
property.  In  process  of  time  the  contract  ripened  into  an  estate. 
The  estate  still  retains  traces  of  its  origin,  and  to  this  extent  is 
personal  property. 

The  details  of  this  subject  are  more  conveniently  treated  in 
works  on  Real  Estate. 


CHAPTER  III.      . 

VARIOUS   DISTINCTIONS    OF    OWNERSHIP. 

Ownership  may  be  either  absolute  or  qualified,  absolute  or  con- 
ditional, complete  or  partial,  legal  or  equitable,  separate  or  joint. 
These  distinctions  will  be  considered  in  separate  sections. 

Section  I.  Absolute  and  qualified  OwnernJdp.  —  The  nature  of 
tlie  property  itself  may  be  such  as  not  to  be  susceptible  of  in- 
defeasible ownership.  Reference  is  here  made  to  the  riglit  of 
property  in  animals.  These,  for  the  treatment  of  this  suljjcct, 
must  be  classified  into  the  ordinary  domestic  animals,  and  those 
by  nature  wild.  Wild  animals,  again,  are  divisible  into  those 
which  are  partially  tame  and  those  whicli  are  wholly  wild. 

As  to  domestic  animals,  there  is  no  question.  One  may  have 
an  indefeasible  property  in  them,  which  is  as  complete  as  if  he 
owned  an  inanimate  chattel. ^  The  young  of  such  animals  in  gen- 
eral belong  to  the  owner  of  the  dam,  except  in  the  case  of  young 
swans  (cygnets),  which  belong  equally  to  the  owner  of  the  sire 
and  dam,  assuming  that  these  are  owned  by  different  persons.^ 
The  general  rule  rests  upon  the  fact  that  the  dam  has  more  care 
over  the  young  than  the  sire,  while  it  is  departed  from  in  the 
case  of  swans,  because  the  male  bird  shares  the  care  with  the 
female.^     In  some  cases  the  ownership  is  divided  between  a  tem- 

1  This  rule  applies  to  a  particular  ani-  son  in  nature  ;  for  tliecock  swan  is  an  en>- 
mal  once  wild  but  now  domesticated,  e.  g.,  blem  or  a  representation  of  an  affectionate 
a  buffalo.     Ulery  v.  Jones,  81  111.  403.  and  true  husband  to   his   wife   above  all 

2  Queen  v.  Lady  Young,  The  Case  of  other  fowls;  for  the  code  swan  holdeth  him- 
Swans,  Part  7  Coke's  Rep.  15  b.  self  to  one  female  only,  and  for  this  cause 

3  Lord    Coke,   in   reporting   this  case,  nature  hath  conferred  on  him  a  gift  beyond 

states  the  principle  in  quaint  and  interest-  all  others  ;  that  is,  to  die  so  joyfully  tliat 

ing  terms.     He  refers  to  the  Case  of  Lord  he  sings  sweetl}''  when  lie  dies  ;  upon  which 

Strange  and  Sir    John    Charlton,    in    the  the  poet  saith . • 

Year  Book  of  2  Richard  in.  15  b  and  16  a,         „,        ,„  ,,  .      ,. 

,  ..  1   iu  4-  T      J  Ci.  1,    1  ^  Dvlcia  defecta  modulntur  carmtnn  lingua, 

where  it  appeared  that  Lord  Strange  had         r,    ,  .  j-        ■    ■  •  i  j 

^^       ,.,  ,  ,   o-  C(intato>\cygmts,funeris  ipse  sut' d-c. 

certain  swans  which  were  cocks,  and  Sir 

John  Charlton  owned  swans  which  were  And  therefore  this  case  of  the  swan  doth 

hens,  and  they  had  cygnets  between  them,  differ  from  the  case  of  kine  or  other  brute 

and  it  was  decided  that  the  cj^gnets  be-  beasts." 

longed  equally  to  the  owners  of  the  cocks  Swans  were  royal  birds,  and  when  wild 

and    hens.     Lord    Coke    then    proceeds .  belonged  to  the  king  by  virtue  of  his  pre- 

"  And  the  law  thereof  is  founded  on  a  rea-  rogative.    But  a  private  person  might  have 

29 


450  THE  LAW  OF  PERSONAL  PEOPERTY. 

porarv  owner,  such  as  a  bailee  for  hire,  and  an  ultimate  owner, 
Avhcn'the  young  are  born.    In  this  case  they  belong  to  the  hirer.-^ 

In  the  case  of  wild  animals  {feroe  naturce)  partially  reclaimed, 
there  is  a  true  ownership,  as  in  the  case  of  a  cat.  Under  special 
circumstances,  an  owner  may  recover  special  damages  against 
one  who  has  killed  his  cat.^  The  same  remark  may  be  made  as 
to  a  dog.  An  action  for  conversion  will  lie  against  one  who 
wrongfully  detains  the  dog  of  another.^  Finally,  as  to  animals 
wild  and  not  reclaimed,  the  right  of  property  is  lost  with  the  pos- 
session, unless  immediate  pursuit  is  made,  as  in  the  case  of  a 
swarm  of  bees  leaving  the  owner.  Owing  to  these  distinctions,  it 
is  important  to  inquire  whether  an  animal  leaving  its  owner  has 
the  disposition  to  return,  animum  reverteyidl.  If  that  continues, 
property  is  not  lost  during  the  recurring  intervals  of  absence.  On 
the  other  hand,  if  it  has  departed,  having  lost  the  intention  to 
return,  the  ownership  is  at  an  end.  The  want  of  the  intention  to 
return  will  be  shown  by  the  circumstances  of  the  case. 

It  is  now  a  settled  rule  of  English  law  that  wild  animals  started 
up  on  the  land  of  a  proprietor  belong  to  him,  and  not  to  one 
who  pursues  and  takes  them  thereon.*  On  this  principle,  a  grant 
by  the  king  of  crown  lands  in  a  colony  grants  by  implication  the 
wild  animals  thereon.-"^ 

The  rule  is  stated  as  follows,  in  substance,  in  the  case  last  cited. 
By  the  common  law  of  England,  a  grant  of  a  fee  simple  in  land 
confers  upon  the  grantee  the  exclusive  right  of  killing  and  taking 
all  game  beasts  of  chase  and  animals  which  are  properly  ferce 
naturce  which  may  at  any  time  be  upon  his  land,  so  long  as  such 
-animals  may  be  and  remain  upon  the  land  so  granted.^ 

It  follows  from  this  statement  that  when  the  wild  animals  have 
left  the  owner's  land  he  has  no  further  right  over  them.  The  same 
view  has  been  adopted  in  this  country,  and  a  trespasser  upon  land 
has  been  denied  all  title  to  wild  animals  found  there  by  him,  as 

a  "swan  mark,"  either  by  grant  from  the  erson,  69  Ga.  447.  The  right  of  projierty 
king  or  obtained  by  prescription.  He  then  in  a  dog  does  not  appear  to  have  been  set- 
could  grant  it  to  another.  Lord  Coke  saw  a  tied  nntil  the  12th  year  of  Henry  VIIL 
conveyance  of  this  kind,  where  a  father  con-  (a.  p.  1520).  See  Filow's  Case,  Year 
veyed  his  "swan  mark"  to  his  eldest  son,  Book,  Trin.  Term,  p.  3,  case  3.  All  the 
and  his  heirs  rendering  a  periodical  rent,  judges  gave  opinions  seriatim.  Elliot,  J., 
The  mark  was  a  "little  knotted  staff'."  denied  the  right  of  proi)erty. 
The  swan  marked  with  such  a  mark  be-  *  Blades  r.  Higgs,  12  C.  B.  N.  s.  501; 
longed  to  the  owner  of  it,  even  though  affirmed  in  Exch.  Cham.  32  L.  J.  (C.  P.) 
swimming  in  open  and  public  rivers.  182;  in  the  House  of  Lords,  34  L.  J.  (C.  P.) 

1  Wood  V.  Ash,  Owens.  Rep.  139.  286. 

2  Whittinghamt;.  Ideson,  8  Upper  Can-  ^  Falkland  Islands  Co.  v.  Queen,  2 
ada  L.  J.  14.  Moore,  P.  C,  Cas.  N.  s.  266,  274. 

3  Binstead   v.  Buck,   2  W.  Bl.   1117.  ^  j^. 
So  as  to  a  canary-bird.    Manning  v.  Mitch- 


VARIOUS   DISTINCTIONS   OF   OWNEESHIP.  451 

between  him  and  the  owner  of  the  land.^  The  rule  was  recently 
applied  in  Rhode  Island  in  a  case  where  the  trespasser  B.  had 
placed  an  empty  box  upon  the  land  of  another  for  bees  to  hive  in. 
The  bees  having  hived  there,  one  C.  took  them  away.  It  was 
decided  that  the  trespasser  B.  had  no  title  to  the  bees,  even 
though  C.  had  no  interest  in  the  land.^ 

There  are  important  statutes  in  several  of  the  States  regulating 
the  taking  of  wild  animals,  including  fish,  requiring  that  they  be 
caught  in  a  specified  way,  or  only  at  certain  seasons  of  the  year. 
The  question  has  been  raised  whether  such  statutes  are  constitu- 
tional, the  objection  being  that  they  invade  a  right  of  property. 
They  are,  however,  deemed  valid  as  being  in  the  nature  of  police 
regulations. (rt)  The  rules  thus  far  stated  are  not  fully  applicable 
in  criminal  law.  This  fact  is  well  shown  in  the  crime  of  larceny 
or  theft.  The  common  law  makes  two  divisions  of  larceny,  — 
grand  and  petty.  The  distinction  turns  upon  the  value  of  the  prop- 
erty stolen.  If  the  value  were  under  twelve  pence,  it  was  "  petty  j  " 
if  above  twelve  pence,  "  grand  "  larceny.  The  punishment  for  grand 
larceny  was  death.  In  applying  these  distinctions  to  this  crime, 
it  was  determined  that  larceny  could  not  be  affirmed  of  stealing 
wild  animals  having  no  intrinsic  value,  but  valued  only  on  account 
of  the  whim  or  caprice  of  the  owner.  It  thus  might  happen  that 
an  animal  could  be  property  as  the  subject  of  a  civil  action  and 
not  be  so  in  a  court  of  criminal  justice.  Instances  are  dogs,  cats, 
apes,  parrots,  singing-birds,  and  the  like.^ 

It  has,  however,  been  decided  that  under  the  New  York  statutes 
dogs  are  the  subject  of  larceny.'^  An  opposite  conclusion  was 
arrived  at  under  the  Pennsylvania  statute,^  and  in  Ohio  ^  and 
North  Carolina.'^ 

The  ownership  of  an  animal  may,  in  some  instances,  be  defeas- 
ible by  some  special  rule  of  law,  for  example  as  being  a  "  nui- 
sance." Thus,  it  has  been  frequently  decided  that  a  ferocious  dog 
suffered  to  run  at  large,  unmuzzled,  is  a  common  nuisance,  and 

1  Gillet  V.  Mason,  7  Johns.  16;  GofT  w.  517,  of  Twiss'  translation.  A  strict  con- 
Kilts,  15  "Wend.  550 ;  Ferguson  v.  Miller,  struction  of  law  would  thus  be  naturally 
1  Cow.  243;  Adams  v.  Burton,  43  Vt.  36.  adopted  by  courts. 

2  Rexroth  v.  Coon,  15  K.  I.  35.  *  Mullaly  v.  The  People,  86  N.  Y.  365  ; 

3  The  sense  and  humanity  of  the  early  People  v.  Malony,  1   Park.   Cr.  C.   593  ; 
jurists  revolted  against  the  frightful  pun-  People  v.  Campbell,  4  Id.  386. 
ishment  prescribed  for  petty  thefts.    Brae-  ^  Findlay  v.  Bear,  8  Serg.  &  R.  571. 
ton    is   very   emphatic    in   this   respect  :  ^  State  v.  Lymus,  26  Ohio  St.  400. 

' '  For  petty  larceny  or  a  petty  article  let  ^  State  v.  Holder,  81  N.  C.  527. 

no  Christian  be  put  to  death."     Vol.  2, 


(a)  See  Lawton  v.   Steele,  119  N.  Y.  226. 


452  THE   LAW   OF   PERSONAL    PROPERTY. 

that  any  one  may  kill  it,  without  any  statutory  provisions.^  The 
same  is  true  if  one's  dog  be  found  upon  the  premises  of  another, 
biting  persons  or  killing  domestic  animals.^  This  rule  does  not, 
however,  extend  to  mere  canine  trespasses,  even  though  accom- 
panied with  slight  annoyance.  The  remedy,  if  any,  in  such  a 
case,  is  an  action  against  the  owner.^  A  dog  may,  however,  be 
killed  in  self-defence.^ 

Statutes  frequently  confer  the  right  to  kill  dogs,  as,  for  ex- 
ample, when  they  kill  sheep,^  (a)  or  when  some  police  regulation 
is  violated,  as  "  being  without  a  collar."  ^  Such  legislation  is 
valid  on  the  same  general  principle  as  that  of  the  destruction  of 
animals  infected  with  a  dangerous  disease. 

Closely  connected  with  the  ownership  of  animals  is  the  liability 
of  an  owner  for  their  acts  injurious  to  others.  There  are  two 
general  classes  of  cases  on  this  subject :  one  where  the  animal  is 
naturally  inclined  to  do  mischief,  and  the  other  where  it  is  not. 

(1)  If  the  animal  be  of  the  first  class,  the  owner  will  be  liable 
for  injuries  done  by  it  without  any  proof  that  he  had  knowledge 
of  its  vicious  propensities.  Knowledge  in  such  a  case  will  be  con- 
clusively presumed.''  (2)  In  the  case  of  other  animals,  it  will  in 
general  be  necessary  to  a  recovery  to  allege  and  prove  knowledge 
by  the  owner,  technically  called  scienter,  of  the  animal's  mischie- 
vous propensities.  This  will  usually  be  a  question  of  fact  for  a 
jury.  Knowledge  by  a  servant  employed  to  have  charge  of  the 
animal,  e.  g.,  a  dog,  will  be  deemed  to  be  the  knowledge  of  the 
master,^  but  this  will  not  be  the  case  if  the  servant  had  nothing 
to  do  with  this  branch  of  the  employer's  business.^  The  basis  of 
the  action  is  the  neglect  of  the  owner  in  taking  proper  care  of  the 
animal  after  knowledge  of  its  mischievous  propensities.  (5) 

1  Putnam  v.  Payne,  13  Johns.  312  ;  now  carried  so  far  that  they  are  no  longer 
Maxwell  v.  Palmerton,  21  Wend.  407  ;  to  be  regarded  in  the  same  light  as  for- 
Brown  v.  Carpenter,  26  Vt.  638.  merly  ;  that   they   often  are   not  only  of 

2  Leonard  v.  Wilkins,  9  Johns,  233  ;  much  pecuniary  value,  but  are  objects  of 
King  V.  Kline,  6  Pa.  St.  318.  special  affection,  and  that,  in  short,  they 

8  Hinckley  v.  Emerson,  4  Cow.  351.  should  now  be  entitled  to  the  same  pro- 

*  Reynolds   v.    Phillips,    13   111.   App.  tection  as  horses  and   other  valuable  do- 

557.  mestic  animals."      The  court  said:  "We 

°  Milman  v.  Shockley,  1  Houst.  (Del.)  are  not    insensible    to  the  force    of  these 

444.  considerations"  (page  242).    The  plaintiff 

6  Tower  v.  Tower,  18  Pick.  262  ;  Cum-  was  not,  however,  allowed  to  recover, 
mings  V.  Perham,  1  Met.  555.     See  More-  "^  Besozzi  v.  Harris,  1  F.  &  F.  92. 

wood  r.    Wakefield,   133    Mass.  240.     In  8  Baldwin  v.    Casella,  L.   R.    7  Exch. 

this  case  it  was  urged  by  the  plaintiff  that  325. 

"  dogs  are  now  a  valuable  species  of  prop-  ^  Stiles  v.  Cardiff  Steam  Nav.  Co.,  10 

erty  ;  that  their  education  and  training  is  Jur.  n.  s.  1199  ;  s.  c.  33  L.  J.  (Q.  B. )  310. 

(a)  See  in  New  York,  oh.  686,  Laws  (b)  Moynahan  v.  Wheeler,  117  N.   Y, 

of  1892,  art.  vL  285  ;  Quilty  v.  Battie,  135  N.  Y.  201. 


VARIOUS   DISTINCTIONS   OF  OWNERSHIP.  453 

Other  cases  of  negligence  might  be  noted,  as  where  cattle 
known  to  have  a  contagious  disease  are  put  with  other  animals  so 
as  to  communicate  the  disease  to  them.^  Such  cases  are  fre- 
quently within  the  terms  of  some  prohibitory  statute.  In  such  a 
case  the  rule  is  laid  down  by  some  authorities  that  if  there  be  a 
violation  of  a  prohibitory  statute,  an  action  will  lie  by  a  party 
injured  against  the  violator. 

A  recent  case  occasioned  great  diversity  of  judicial  opinion, 
where  a  statute  ^  prohibited  the  sale,  knowingly,  of  infected  ani- 
mals in  open  market.  Notwithstanding  this  ])rohil)ition,  an  owner 
sold  pigs  known  to  be  diseased,  expressly  stating  that  they  were 
sold  ^'■with  all  their  faults.^''  The  buyer,  not  knowing  of  the 
disease,  mingled  them  with  sound  pigs,  who  took  the  disease  and 
died.  It  was  held  that  he  had  no  cause  of  action.  He  was 
obliged  to  sue  upon  a  warranty  or  a  false  representation,  and  he 
could  not  make  this  out  by  reason  of  the  express  words  of  the 
contract  negativing  all  warranty.^ 

The  humane  spirit  of  modern  times  has  taken  much  more  note 
of  animals  than  formerly.  There  has  been  much  beneficent  legis- 
lation resorted  to  with  a  view  of  preventing  cruelty  to  them.* 
There  are  similar  statutes  in  some  of  the  States  of  this  country. 
There  are  also  stringent  statutes  by  Congress  of  a  commercial 
nature  for  neglecting  to  provide  food  and  water  for  cattle  on  rail- 
road cars.^ 

Another  instance  of  property  not  absolute  is  the  quasi  owner- 
ship of  a  dead  body.  By  the  common  law  of  England,  as 
interpreted  by  Lord  Coke  and  others,  there  is  no  property  in  the 
remains  of  the  dead,  though  there  may  be  in  the  sliroud  or  coffin 
in  which  they  are  placed.  There  is,  however,  a  tendency  in  the 
United  States  to  reject  this  view,  as  being  repugnant  to  the  senti- 
ments of  our  time.  The  better  opinion  seems  to  be,  that  for  the 
purpose  of  protecting  the  remains  of  the  dead,  or  determining  the 

1  Earp  r.  Faulkner,  34  L.  T.  2S4.  culty,"  and  Lord  Selborne  "with   reluc- 

2  32  &  33  Viot.  c.  70.  tance." 

3  Ward  V.  Hobbs,  L.  R.  4  App.  Gas.  *  3  Goo.  IV.  c.  71  ;  5  &  6  Wm.  IV. 
13.  This  case  is  a  remarkable  instance  c.  59  ;  7  Wm.  IV.  &  1  Vict.  c.  66.  See 
of  the  diversity  of  judicial  opinion,  even  also  12  &  13  Vict.  c.  92.  The  last  is 
among  the  ablest  judges.  It  was  held  by  known  as  the  "  Prevention  of  Cruelty  to 
the  Queen's  Bench  Division,  that  the  seller  Animals  Act."  Under  this  legislation  it 
was  liable.  Ward  v.  Hobbs,  L.  R.  2  is  cruelty  to  perform  an  operation  upon  an 
Q.  B.  D.  331.  In  the  Court  of  Appeal,  animal  which  causes  pain,  unless  the  act 
L.  R.  3  Q.  B.  D.  150,  a  different  conclu-  is  justified  by  some  lawful  purpose. 
sion  was  arrived  at  "with  doubt"  or  Murphy  v.  Manning,  L.  R.  2  Exch.  Div. 
"with  reluctance,"  each  of  the  judges  307.  See  New  York  Tenal  Code,  §§  655- 
reading  a  separate  opinion.     In  the  House  669. 

of  Lords  there  are  several  separate  opinions,  ^  U.  S.  Rev.  St.,  §§  4386-4390. 

Lord   O'Hagan    concurring     "with   ditfi- 


/ 


454  THE  LAW  OF  PERSONAL  PEOPERTY. 

place  of  interment,  and  the  like,  there  is  a  species  of  property,  or 
perhaps  more  accurately,  a  right  of  control,  in  the  relatives,  which 
a  court  of  equity,  on  proper  application,  will  enforce,  as  being  in 
the  nature  of  a  trust.  It  would  seem  quite  clear  that  a  dead  body 
is  not  property  in  the  ordinary  sense. 

A  leading  discussion  of  this  question  is  found  in  the  report  of 
Samuel  B.  Ruggles,  as  referee,  to  the  Supreme  Court  of  New  York. 
This  was  favorable  to  the  right  of  property,  and  was  confirmed 
by  the  court. ^  This  decision  has  been  followed  in  the  courts  of 
other  States.2(a) 

Accordingly,  the  right  to  select  a  burial-place  must  be  deter- 
mined upon  equitable  grounds.  In  Massachusetts,  the  right  of 
the  husband  to  select  the  burial-place  of  the  wife's  remains  appears 
to  be  made  paramount.^  In  New  York,  the  claim  of  a  son,  under 
somewhat  special  circumstances,  was  preferred  to  that  of  the 
widow.*  (5)  In  Pennsylvania,  it  has  been  held,  that  where  all  but 
one  of  several  children  had  interred  their  mother's  remains  in  a 
particular  place  (following  a  dying  request  made  by  her),  the 
dissenting  child  could  not  remove  the  remains  to  another  place 
of  burial.^  It  has,  however,  been  held  by  the  court  of  South  Caro- 
lina, that  an  admiyiistrator  had  no  such  property  in  the  body  of  his 
intestate  that  he  could  bring  an  action  for  its  mutilation  by  the 
negligence  of  a  railroad  company,^  The  court  remarked  that  the 
cases  as  yet  had  gone  no  further  than  to  hold  that  there  was  a 
property  in  the  next  of  kin.''  {c) 

Some  of  the  cases  above  cited  seem  to  rest  the  right  of  prop- 
erty upon  a  common-law  obligation  on  the  part  of  the  relatives  to 
bury  the  deceased.  They  may,  therefore,  protect  the  body  in 
order  to  bury  it.  This  seems  to  be  an  inadequate  theory,  since 
after  burial  there  would  be  no  further  right. 

It  has  been  decided  in  England  that  a  person  cannot  by  his 

1  Appendix  4  Bradf.,  503,  532.  4  Snyder  v.  Snyder,  60  How.  Pr.  368. 

2  In  Pennsylvania,  Wynkoop  v.  "Wj-n-  ^  Lowrie  v.  Plitt,  V.  Phila.  (Pa.)  303. 
koop,  42  Pa.  St.  293.     In  Indiana,  Bogert          6  Griffith    v.    Eailroad,    24   Am.    Law 
V.  City  of  Indianapolis,  13  Ind.  134.      In  Reg.  N.  s.  586. 

Massachusetts,  Weld  v.  Walker,  130  Mass.  ^  Id.  p.  590.  See  also  a  learned  note 
422.  In  Ehode  Island,  Pierce  v.  Swan  to  this  case  by  Mr.  L.  V.  Bright.  In  Mis- 
Point  Cemetery,  10  R.  I.  227.  In  Ohio,  6  soi;ri,  the  view  is,  that  there  is  no  property 
Am.  Law.  Rev.  182.  in  a  corpse,  but  only  a  right  of  interment. 

3  Weld  V.  Walker,  supra.  Guthrie  v.  Weaver,  1  Mo.  App.  136. 


(a)  See  also  Larson  v.  Chase,  47  Minn.  (c)  The  right  of  property  in  the  next 
307  ;  Renihan  v.  Wright,  125  Ind.  536.         of  kin  is  recognized  in  Larson  v.  Chase, 

(b)  Cf.  Secord  v.  Secor,  18  Abb.  N.  C.     supra  ;  Renihan  v.  Wright,  supra. 
78;   In  re  Donn,  14  N.  Y.   Supp.   189; 

Peters  v.  Peters,  43  N.  J.  Eq.  140. 


VARIOUS   DISTINCTIONS   OF   OWNERSHIP.  455 

will  make  a  bequest  of  his  body,  taking  effect  after  death. ^ 
This  subject  bears  upon  the  right  of  cremation.  It  was  decided 
in  England  by  a  criminal  court,  Stephen,  J.,  presiding,  that  it 
was  not  a  misdemeanor  for  one  having  lawful  possession  of  a  dead 
body  to  burn  it  rather  than  to  bury  it.^  Tliis  decision  scarcely 
seems  to  accord  with  a  class  of  cases  which  hold  tliat  there  is  a 
common-law  duty  to  bury  a  dead  body,  imposed  upon  the  next  of 
kin  in  certain  instances.  It  would  be  necessary,  in  order  to  per- 
mit cremation,  to  enlarge  the  former  rule,  and  to  hold  that  the 
duty  simply  is  either  to  bury  or  otlierwise  to  dispose  of  it  as  may 
comport  with  public  health  and  decency,  and  that  cremation  is 
such  a  mode.  Nothing  was  decided  by  Queen  v.  Price  except  that 
cremation  was  not  necessarily  a  common-law  crime.  It  clearly 
might  become  so  by  attendant  circumstances,  such  as  would 
make  the  act  a  common  nuisance.  If  the  right  of  cremation 
exist,  it  clearly  ought  to  be  regulated  by  law,  as  it  might  easily 
be  resorted  to  with  a  view  of  destroying  evidence  of  crime.^  It 
would  be  a  clear  misdemeanor  to  burn  the  body  with  such  a 
view ;  ^  but  if  cremation  were  regularly  allowed  to  any  one  having 
lawful  possession  of  a  dead  body,  its  destruction  for  tlie  purpose 
of  concealment  of  crime  would  be  less  easily  detected  than  at 
present.^ 

There  are  other  forms  of  qualified  or  limited  ownership.  One 
is  the  case  where  the  ownership  is  liable  to  be  defeated  by  a  pre- 
scribed event.  This  would  be  in  law  a  condition  subsequent.  On 
the  happening  of  the  prescribed  event,  assuming  it  to  be  a  lawful 
one,  the  ownership  would  cease. 

Another  instance  occurs  in  the  law  of  bailment.  By  this  con- 
tract, an  owner  may  confer  upon  another  a  limited  interest  in  a 
chattel,  reserving  the  ultimate  interest  in  himself.  In  this  case, 
the  bailee  becomes  a  temporary  or  "  special "  owner,  while  the 
bailor  is  the  "  general "  owner.  All  bailments  do  not  lead  to  this 
result.  A  sufficient  test  is  to  inquire  whether  the  bailee  has  a 
i-ight  which  is  available  against  the  general  owner.  This  would 
be  true  of  a  hirer,  of  a  pledgee,  of  a  carrier  having  an  unjiaid 
claim  for  freight,  of  a  sheriff  holding  the  goods  of  a  debtor  on 
account  of  the  debt;  but  it  would  not  be  true  of  an  ordinary 
finder  or  of  a  borrower.     Under  this  rule,  the  general   owner 

1  "Williams  v.  Williams,  L.  R.  20  Cli.  &  Grove.  J.,  said  in  the  case  cite.l, 
D.  659.  "  If  it  is  a  crime  to  buiy"  for  such  a  pur- 

2  Queen  v.  Price,  L.  R.  12  Q.  B.  D.  pose,  "  re/or/liVi  it  is  one  to  burn  a  body, 
247  (1S84).  because  if  you  bury,  exhumation  is  possi- 

3  Queen  v.  Stephenson, L.R.  13  Q.  B.  D.  ble,  but  if  you  burn,  the  body  is  destroyed. 
2,2,1.  and  examination  is  no  longer  possible." 

i  I.|_  Queen  v.  Stephenson,  supra,  p.  337. 


456  THE  LAW  OF  PERSONAL  PEOPERTY. 

might  be  guilty  of  theft  in  taking  the  goods  from  the  special 
owner,  in  the  same  way  as  if  he  had  taken  the  goods  of  a 
stranger.  This  rule  has  been  stated  in  the  paradoxical  form, 
that  "  he  steals  his  own  goods."  This,  however,  is  not  a  correct 
statement,  for  what  he  takes  is  the  interest  that  another  has  in 
his  goods.^ 

Section  II.  Equitahle  and  legal  OivnershiiJ.  —  The  meaning 
of  this  distinction  is,  that  ownership  is  in  some  cases  recognized 
in  a  court  of  law,  while  in  other  cases  it  is  solely  considered  in  a 
court  of  equity.  The  more  ordinary  form  of  ownership  is  legal ; 
on  the  other  hand,  a  trust  may  exist.  In  the  case  of  a  technical 
trust,  the  title  to  the  property  is  exclusively  vested  in  the  trustee. 
If,  for  example,  he  hold  a  fund,  he  alone  will  collect  the  interest 
and  perform  what  acts  are  necessary  for  the  protection  of  it.  He 
will  be  owner  as  to  third  persons.  As  between  him  and  the  bene- 
ficiary, called  the  cestui  que  trust  (or,  if  more  than  one,  cestuis  que 
trustenf),  the  latter  is  owner  in  the  view  of  a  court  of  equity. 
The  ownership  is  thus  divided  into  formal  and  substantial,  or,  in 
technical  phrase,  legal  and  equitable.  There  are  other  fiduciary 
relations  sometimes  called  trusts,  which  are  not  true  trusts, — 
such  as,  for  example,  a  bailment.  The  bailee  does  not  ordinarily 
have  the  legal  title,  but  at  most  a  special  property.  If  he  had  the 
formal  title  in  any  instance,  —  as,  for  example,  he  does  frequently 
have  in  the  case  of  bank  and  other  stocks  standing  on  the  books 
of  the  corporation  in  his  name,  —  he  will  be  a  technical  trustee. 
The  same  remark  may  be  applied  to  cases  where  agency  is  the 
leading  reason  for  delivering  goods  of  the  principal.  If  the  goods 
are  simply  delivered  to  the  agent,  a  simple  fiduciary  relation  will 
be  created ;  if  the  title  is  conferred,  e.  g.,  by  a  bill  of  lading,  a 
technical  trust  may  exist. 

There  are  frequently  trusts  in  which  there  is  no  active  duty  to 
be  performed,  and  accordingly  called  passive  trusts,  or  "  dry " 
trusts.  A  trust  may  also  be  implied  from  the  relation  of  the  par- 
ties or  the  circumstances  of  the  case. 

Trusts  emphatically  rest  upon  confidence.  The  relation  created 
by  an  express  trust  is  in  a  high  degree  confidential.  One  of  the 
leading  risks  run  by  the  beneficiary  is,  that  the  trustee  may  in 
violation  of  his  duty  transfer  the  estate  to  one  who  pays  him  full 
value  without  notice  of  the  trust ;  such  a  person,  holding  the  legal 
title,  is  discharged  in  law  from  the  performance  of  the  trust 
towards  the  beneficiary.  Still,  if  the  property  can  be  traced,  a 
trust  may  be  fastened  upon  the  proceeds  ;  if  not,  the  whole  trans- 

1  Aflams  V.  State,  45  N.  J.  Law,  448,  and  many  other  cases.  The  proposition  is 
elementary. 


VARIOUS    DISTINCTIONS    OF   OWNERSHIP.  457 

action  may  resolve  itself  into  a  claim  for  damages  against  the 
defaulting  trustee.  But,  where  no  such  special  element  involv- 
ing the  rights  of  purchasers  enters  into  the  case,  the  trust  will,  as 
a  rule,  attach  itself  to  the  property,  or,  in  case  of  change  of  form, 
to  its  proceeds,  so  long  as  these  can  be  traced.  Vv'hcn  this  can 
no  longer  be  done,  the  whole  transaction  may  resolve  itself  sub- 
stantially into  a  debt,  and  the  beneficiary  may  only  have  a  claim 
for  money  against  the  defaulting  trustee,  as  far  as  his  creditors 
are  concerned.' 

Thus,  in  an  accounting  against  a  defaulting  trustee  in  bank- 
ruptcy or  insolvency,  a  trust  creditor  is  not  entitled  to  preference 
over  the  general  creditors  of  the  insolvent  merely  on  the  ground 
of  the  nature  of  his  claim.  There  must  be  some  equitable  prin- 
ciple entitling  the  cestui  que  trust  to  preferential  payment,  such 
as  that  the  estate  of  the  insolvent  includes  proceeds  of  the  trust 
estate,  and  then  only  to  the  extent  of  such  proceeds.^  (a) 

As  between  the  beneficiary  and  the  trustee  mingling  trust  funds 
with  his  own,  the  former  may  insist  upon  a  return  to  him  of  the 
funds  themselves  or  their  proceeds,^  or  if  such  return  is  impracti- 
cable, as,  for  example,  by  tlie  failure  of  a  bank  in  which  a  deposit 
of  them  is  made,  may  cast  the  loss  upon  the  trustee. 

The  general  rules  governing  trusts  will  be  found  in  books  upon 
equity  jurisprudence,  or  more  specifically,  in  treatises  on  the  law 
of  trusts.* 

»  Hart  V.  Ten  Eyck,  2  Johns,  Ch.  62.  cnit  Court  E.  Dist.  of  N.  C.     This  is  an 

The  trust  funds  might  be  separated  even  as  elaborate    and   well-considered   case,    and 

against  a  creditor  if  he  knew  or  had  rea-  many  American  and  English   authorities 

sonable  means  of  knowing  that  the  agent  are    collated.       Compare     Knatchbull    v. 

or   trustee  was  mingling   them  with   liis  Hallett,  L.  R.  13  Ch.  D.  696,  and  Taylor 

own  funds.     National  Bank  v.  Insurance  v.  Plumer,  3  M.  &  S.  .562,  573,  —  opinion 

Co.,  104  U.  S.   54,  where  the  subject  is  by  Lord  ELLENBORoron. 
elaborately  considered.  3  Van   Alen    v.    Am.    Nat.    Bank,    52 

2  Matter  of  Cavin  v.  Gleason,  105  N.  Y.  N.  Y.  1  ;  Cragie  v.  Hadley,  99  N.  Y.  131  ; 

256.     The  case  of  People  v.  City  Bank  of  Cook  v.  Tullis,  18  Wall.  332. 
Rochester,  96  N.  Y.  32,  supposed  by  some  *  Story's  Equity  Jurisprudence,  Pora- 

to  hold  a  contrary  view,  is  explained  in  eroy  on  the  same  .subject,  Lewiii  on  Trusts, 

Cavin  v.  Gleason  ;  Philadelphia  Nat.  Bank  PeiTy  on  Trusts,  and  Hill  on  Trustees. 
V.    Dowd,    38  Fed.  R.   172   (1889),    Cir- 


[a)  Frank  v.   Bingham,  58  Hun,  580  ;  that  the  estate  of  the   insolvent  was  in- 

Atkinson  v.   Rochester  Printing  Co.,  114  creased     or    benefited     by     the     amount 

N.  Y.  168  ;  IMerchants'  &  Farmers'  Bank  claimed.     This  done,  a  lien  is  given  upon 

V.  Austin,  48  Fed.  R.  25  ;  Phillips  v.  Over-  the  whole  estate  for  the  full  amount  of  the 

field,    100    Mo.    466  ;    Bank   v.    Weems,  property  received  in  trust,  irrespective  of 

69  Tex.  489;  In   re  Ulster  Building  Co.,  the  actual  amount  of  such  propeity  or  its 

25  L.  R.  Ir.    24.     Cf.  Holmes  t;.  Oilman,  proceeds  on  hand  at  the  time  of  the  failure. 

138  N.  Y.  369.  McLeod  v.  Evans,  66  Wis.  401  ;  The  Ind. 

According  to  some  recent  authorities  it  Dist.  of  Boyer  v.  King,  SO  la.  497  ;  First 

is  not  necessary  to  trace  the  trust  property  Nat'l    Bank    v.    Hummel,    14   Col.    2.".9  ; 

directlyinto  the  fund  sought  to  be  charged.  Carley  v.  Graves,  85  Mii'h.  4S3  ;   Smith  v. 

It  is  by  these  authorities  sufficient  to  prove  Combs,  49  N.  J.  Eq.  420. 


458  THE  LAW  OF  PERSONAL  PROPEKTY. 

Section  III.  Separate  and  Co-oivnersJiip.  — Any  subject-matter 
susceptible  of  ownership  may  be  owned  by  one  person  separately 
and  exclusively,  or  by  two  or  more.  This  co-ownership  is  either 
joint  tenancy  or  tenancy  in  common.  Partnership  will  be  treated 
separately. 

(1)  Joint  tenancy.  By  joint  tenancy  is  meant  an  ownership  of 
a  complex  kind,  in  which  two  or  moi'e  persons  are  supposed  each 
to  own  the  ivliole  chattel.  It  is  not  an  ownership  in  undivided 
shares,  but  of  the  whole.  One  of  the  results  of  this  theory  is  sur- 
vivorship. As  the  owners  from  time  to  time  die,  the  chattel 
belongs  to  the  survivors  until  the  last  survivor  becomes  complete 
owner,  free  from  the  rights  of  his  former  associates.  This  sub- 
ject also  prevails  in  the  law  of  real  property.  It  is  commonly 
said  that  there  are  four  unities  in  this  case :  title,  time,  interest, 
and  possession. 

In  creating  a  joint  interest,  it  is  a  rule  of  construction  that  a 
grant  of  a  chattel  to  two  or  more  makes  them  joint  tenants,  rather 
than  tenants  in  common.  This  rule  is  modified  by  the  principles 
of  equity  jurisprudence,  where  each  of  the  parties  advances  a  part 
of  the  consideration  to  purchase  the  chattel.  In  this  case,  there 
is  a  tenancy  in  common.  It  is  a  rule  of  commercial  law  that  sur- 
vivorship does  not  prevail  among  merchants  (/ws  aecrescendi  inter 
mercatores  locmyi  non  habet^.  When,  however,  a  chattel  is  acquired 
by  gift  or  by  will  by  two  or  more,  equity  docs  not  interfere,  as 
there  is  no  consideration  on  which  to  base  the  theory  of  a  trust, 
and  survivorship  takes  effect.  An  example  is  a  legacy  of  one 
hundred  dollars  to  A.  and  B. 

In  tenancy  in  common,  there  is  no  theory  that  each  owns  the 
whole.  Each  owns  an  undivided  share.  There  is  only  one  unity, 
that  of  possession.  This  is  much  more  usual  than  joint  tenancy. 
On  the  death  of  one,  his  share  belongs  to  his  executors  or  adminis- 
trators. 

In  the  law  of  contracts,  a  combination  of  the  two  principles 
prevails.  Joint  tenancy  can  be  readily  destroyed  by  either  of  the 
owners  so  far,  at  least,  as  his  own  share  is  concerned.  He  can 
sell  to  a  stranger  his  interest,  in  which  case  his  share  is  in  theory 
severed  from  that  of  the  others.  Thus  if  there  were  ten  joint 
tenants,  any  one  of  them  could  convey ;  and  while  the  remaining 
nine  would  be  joint  tenants  as  between  themselves,  the  purchaser 
would  be  a  tenant  in  common  with  the  others  instead  of  a  joint 
tenant.  He  would  be  a  tenant  in  common  rather  than  a  joint 
tenant,  siilce  the foicr  necessary  unities  do  not  exist;  he  would  be 
a  tenant  in  common  rather  than  an  owner  by  himself,  since  his 
share  is  still  undivided. 

Moreover,  the  joint  tenants  can  by  agroement  divide  the  property 


VARIOUS   DISnXClIOXS   OF   OWNERSHIP.  459 

so  that  each  shall  own  separate  interests,  or  if  the  chattel  be  indi- 
visible, can  unite  in  a  sale  and  divide  the  proceeds.  The  subject 
matter  owned  may  also  be  divided  by  a  legal  proceeding.  As  this 
remark  is  also  applicable  to  interests  held  in  common,  the  consid- 
eration of  the  topic  will  be  deferred. 

(2)  Tenancy  in  common.  In  this  form  of  ownership  there  is  no 
theory  that  each  owner  owns  the  whole.  It  is  simply  a  case  of 
separate  interests,  though  undivided.  Each  owns  his  own  share. 
He  may  freely  sell  or  dispose  of  it,  and  on  his  death,  if  still  owner, 
it  passes  not  to  the  survivor,  but  to  his  own  representatives,  who 
occupy  his  position  and  become  in  like  manner  tenants  in  common. 
Instead  of  there  being  four  unities,  as  in  joint  tenancy,  there  is 
but  one,  unity  of  possession.  This  form  of  ownership  is  far  more 
usual  in  modern  life  than  joint  tenancy.  It  is  imjAied  in  one 
highly  important  instance.  This  is  where  one  of  several  partners 
sells  his  interest  in  the  stock  in  trade  to  a  purchaser,  or  it  is 
sold  by  a  creditor  on  an  execution.  The  purchaser  does  not  in 
such  a  case  become  a  partner,  but  a  tenant  in  common,  subject,  it 
may  be,  to  have  the  property  diverted  from  his  use  to  the  pay- 
ment of  partnership  debts. 

There  is  an  important  aspect  of  this  case  in  the  law  of  contracts. 
Let  a  contract  be  made  with  two  or  more  persons,  in  which  they 
have  rights  to  be  enforced  in  court.  The  fonnal  right  is  of  an 
indivisible  nature,  and  must  be  presented  for  enforcement  in  the 
names  of  both.  Should  one  die,  this  right  of  enforcement  would 
vest  exclusively  in  the  survivor.  Should  he  receive  payment,  the 
beneficial  interest  would  not  belong  to  him  exclusively,  but  he 
would  be  deemed  to  be  a  trustee  for  the  representatives  of  the 
deceased  to  the  extent  of  their  share.  In  brief,  the  right  to  sue 
vests  in  the  survivor,  but  not  the  beneficial  interest.  A  parallel 
principle  is  adopted  in  enforcing  a  joint  Uabilitt/,  though  this,  of 
course,  is  not  a  case  of  joint  ownership.  It  may  properly  enouo-h 
be  stated  here  for  the  sake  of  giving  a  general  view  of  the  whole 
subject.  Thus,  if  two  or  more  incur  a  joint  liability  on  contract, 
and  one  die,  the  duty  to  discharge  it  is  imposed  upon  the  survivor, 
who,  in  doing  so,  exacts  from  the  representatives  of  the  deceased 
their  proper  share,  called  contribution.  In  other  words,  as  between 
the  creditor  and  the  survivor,  the  latter  must  pay  the  whole ;  as, 
between  the  survivor  and  the  representatives  of  the  deceased,  there 
is  a  duty  to  equalize  the  burden  of  the  liability. 

A  liability  may  by  express  words  of  promise  be  created  by  two 
or  more  persons  in  such  a  way  as  to  be  enforced  against  all  collec- 
tively or  each  separately.  This  is  termed  "  joint  and  several."  In 
this  case,  the  creditor  will  have  an  option  to  sue  one  or  all.     In 


460  THE  LAW  OF  PERSONAL  PROPERTY. 

whichever  way  he  proceeds,  the  duty  to  contribute  will  attach  as 
in  the  case  of  joint  liability. 

By  partition  is  meant  the  right  of  one  or  more  of  several 
joint  owners,  whether  in  joint  tenancy  or  in  tenancy  in  common, 
to  proceed  in  law  to  have  his  or  their  interest  ascertained  and 
set  apart.  This  is  declared  to  be  a  right  inherent  in  ownership. 
The  right  to  the  partition  of  real  estate  is  very  ancient,  both 
in  the  courts  of  common  law  by  writ,  and  in  a  court  of  equity. 
Writs  of  partition  at  common  law  are  given  in  full  in  Bracton,i 
to  meet  a  variety  of  cases  as  between  co-heirs.  While  some 
things  were  not  the  subject  of  partition  (such  as  a  castle  for  the 
defence  of  the  realm  2),  yet  most  joint  interests  were,  and  pro- 
visions are  found  for  producing  equality  between  the  heirs,  and 
for  equalizing  division  when  some  of  the  items  were  in  their 
nature  indivisible.  Courts  of  equity  had  their  attention  attracted 
to  this  subject  at  a  very  early  day,  on  account  of  the  fact  that  in 
many  cases  there  was  no  adequate  or  complete  remedy  at  com- 
mon law.^ 

Personal  property  falls  plainly  within  the  jurisdiction  of  equity, 
since  the  common-law  courts  could  grant  no  relief  in  this  class  of 
cases.  All  the  needed  power  was  at  hand  in  the  courts  of  equity, 
since  they  could  take  an  accounting,  ascertain  all  the  facts,  have 
a  reference  to  a  master,  provide  for  an  equality  of  division,  protect 
the  rights  of  infants  and  married  women,  order  a  sale  if  necessary 
for  division,  and  direct  the  parties  to  make  all  requisite  assign- 
ments and  transfers.* 

However,  the  interests  of  owners  of  property  may  be  so  con- 
trolled by  a  trustee  that  the  right  to  sell  and  divide  may  be  vested 
in  him,  and  partition  be  not  available  to  them,  except  by  unani- 
mous consent  on  the  part  of  the  cestuis  que  trustent,  being  of 
full  age.^ 

Section  IY.  *•'■  Future  Estates''^  in  Personal  Proijerty.  —  The 
doctrine  of  "  estates  in  land "  is  of  far-reaching  importance  in 
real  property.  In  fact,  real  estate  law  is  based  upon  it.  One  is 
not  supposed  strictly  to  own  land,  but  an  estate  in  land.  Tliese 
estates  are  classified  according  to  archaic  rules  derived  from  the 

1  Bracton,  Twiss'  translation,  voL  1,  Stebbins,  28  Id.  2&0  ;  "VVetmore  v.  Zab- 
pp.  569-615  (1878).  ri.skie,   29  N.  J.  Eq.  62;  Crapster  v.  Grif- 

2  Id.  pp.  605,  607.  fith,  2   Bland  (Md.),  5  ;  Smith  v.  Smith, 

3  This  point  is  discussed  in  a  satis-  4  Eand.  (Ya.)95,  102  ;  Marshall  v.  Ciow's 
factory  manner  in  1  Story  on  Eq.  Jur.  Adm.,  29  Ala.  278  ;  Corbitt  v.  Corbitt,  1 
(13th  ed.),     §  646  ;  3  Pomeroy  Eq.  Jur.  Jones  {N.  C),  Eq.  114. 

§  1391.  5  Biggs  i;.  Peacock,  L.  R.   22  Ch.   D. 

4  See  Tripp  v.  Riley,   15  Barb.    333  ;     284. 
Fobes  V.  Shattuck,  22  Id.  5G8  ;  Tiuney  v. 


VARIOUS   DISTINCTIOXS   OF   OWXEESHIP.  461 

feudal  system.  The  grand  division  is  into  freehold  and  less  than 
freehold.  The  characteristic  of  a  freehold  is  that  it  must  at  least 
continue  for  the  life  of  some  specified  person  or  persons,  or  beyond 
that,  be  capable  of  descent  to  heirs,  in  which  last  case  it  is  termed 
a  freehold  of  inheritance.  All  other  "  estates "  are  less  than 
freehold. 

Out  of  these  arbitrary  distinctions  grow  complex  legal  rules  not 
necessary  now  to  be  stated,  except  so  far  as  they  bear  a  close 
relation  to  the  subject  in  hand.  One  leading  topic  proper  now  to 
be  considered  is  the  law  of  "  remainders."  By  a  "  remainder  " 
in  real  estate  law  is  meant  the  residue  of  an  estate,  where  some 
prior  interest  of  a  limited  nature,  called  a  "  particular  estate,"  is 
created  by  the  same  instrument.  A  simple  illustration  is  found 
in  a  will,  where  a  testator  gives  a  house  and  lot  to  A.  for  his  life, 
and  the  residue  of  his  interest  to  B.  The  amount  given  to  B.  is 
termed  a  "  remainder."  This  subject  is  fruitful  in  subtle  distinc- 
tions, which  in  some  of  the  States  have  been  much  disturbed  by 
statute.  Without  going  into  detail,  the  important  remark  is  that 
this  branch  of  law  is  not  applicable  to  personal  property.  The 
law  of  freehold  and  non-freehold  estates  is  confined  to  landed 
interests.     So  also  is  the  technical  law  of  remainders. 

It  must  not  be  understood  that  there  are  no  future  interests 
possible  in  personal  property.  There  certainly  may  be.  For 
example,  there  may  be  trusts  to  take  effect  at  a  future  day,  or 
other  executory  interests  in  the  nature  of  the  "  executory  devises  " 
of  real  estate  law,  in  which  the  intention  of  the  testator  is  more 
fully  regarded  than  in  the  case  of  remainders. 

There  is  a  practical  difficulty  in  bestowing  upon  one  person  the 
temporary  ownership  of  personal  property,  and  upon  another  the 
residuary  interest  in  the  same  property,  owing  to  the  fugitive  and 
perishable  nature  of  the  property  itself.  A  distinction  must  be 
taken  between  that  which  can  only  be  used  or  enjoyed  by  consum- 
ing it,  and  that  which  can  be  used  by  one,  and  still  remain  for 
the  use  and  enjoyment  of  another.  In  the  first  class  of  cases, 
the  gift  of  the  use  of  the  chattel  for  a  term  is  an  absolute  gift, 
since  the  gift  would  otherwise  be  of  no  value.  This  result  might 
be  avoided  if  an  owner  should  direct  the  chattel  to  be  sold,  and 
the  proceeds  to  be  invested,  and  the  income  paid  to  A.,  say  for 
life,  and  afterwards  the  fund  conveyed  to  B.  In  this  case,  it  is 
plain  that  the  interest  of  the  fund  can  be  distinguished  and 
separated  in  ownership  from  the  fund  itself.  So  if  one  should 
give  his  law  library  to  be  used  by  A.  for  his  life,  and  the  books 
themselves,  after  A.'s  right  had  terminated,  to  B.,  there  would  be, 
without  any  sale,  a  possible  division  of  ownership.     A.  in  such  a 


462  THE  LAW  OF  PERSONAL  PROPERTY. 

case  is  temporary  owner ;  B.  is  the  ultimate  owner.  Each  has 
rights  which  a  court  ought,  when  its  aid  is  properly  invoked,  to 
protect.  An  injunction  might  be  resorted  to  if  A.  threatened  to 
injure  the  property,  or  he  might  in  a  proper  case  be  required 
to  give  security.  As  long  as  there  is  no  wrong  or  threat  of 
wrong,  there  would  in  general  be  no  more  exacted  than  that  a 
list  of  the  books  should  be  supplied  to  B.,  so  that  he  might  have 
the  means  of  knowing  what  should  be  forthcoming  at  A.'s  death. 
It  would,  however,  be  a  general  rule  that  money  would  not  be 
paid  over,  by  order  of  the  court,  to  A.  under  such  circumstances, 
unless  he  gave  adequate  security  for  its  payment  to  B.,  when  the 
time  prescribed  by  the  will  or  other  instrument  arrived. 

Questions  of  this  kind  may  arise  in  marriage  settlements  or 
wills.  They  do  not,  from  the  nature  of  the  case,  usually  arise  in 
mere  business  transactions.  They  may  occur  as  to  all  forms  of 
personal  property,  such  as  government  securities,  railroad  and 
other  stocks,  bonds,  mortgages,  etc. 

Powers.  —  This  subject  is  important  as  affecting  both  real  and 
personal  property.  It  is  more  fully  developed  in  the  case  of  real 
property,  but  it  has  its  appropriate  place  here.  Powers  of  the 
class  now  to  be  considered  appear  for  the  most  part  in  marriage 
settlements  and  wills. 

In  the  outset,  a  distinction  should  be  taken  between  an  ordinary 
power  of  attorney  in  business  affairs,  and  those  now  under  con- 
sideration. A  "  power  of  attorney  "  is  merely  a  formal  mode  of 
constituting  an  agent.  It  implies  a  principal,  and  the  legal  theory 
is,  when  any  act  is  done  by  the  agent,  that  it  is  really  performed 
by  the  principal  through  the  medium  of  the  agent.  The  questions 
governing  such  a  power  are  to  be  solved  by  general  rules  derived 
from  agency.  The  powers  now  in  question  have  nothing  to  do 
with  agency.  They  are  in  their  origin  a  branch  of  the  law  of 
trusts. 

A  single  illustration  will  suffice  to  show  how  these  powers 
arose.  Let  it  be  supposed  that  A.  made  over  a  fund  amounting 
to  825,000  to  B.  to  hold  in  trust  for  A.  himself.  B.,  having 
the  formal  title,  thereupon  became  a  trustee  for  A.,  who  was  then 
a  cestui  que  trust  or  beneficiary  of  a  trust.  His  rights,  hence- 
forth, are  to  be  administered  by  a  court  of  equity,  having  ex- 
clusive jurisdiction  of  the  subject,  and  following  rules  of  its 
own,  varying  from  those  adopted  in  the  common-law  courts. 
Among  other  rules,  was  the  right  of  A.  to  designate  some  other 
person  to  be  the  beneficiary,  and  to  reserve  the  right  to  revoke  a 
designation  once  made,  and  to  substitute  another  beneficiary. 
The   control  which   A.  thus   had   over   the   subject-matter  was 


VAKIOUS   DISTIXCTIOXS    OF    OWNERSHIP.  4G3 

termed  a  power  to  "  appoint,"  and  after  appointment  to  "  revoke," 
and  to  make  a  new  appointment,  etc.  All  the  while  the  trust 
might  continue,  and  so  the  matter  resolved  itself  into  the  designa- 
tion of  a  cestui  que  trust,  and  the  recalling  of  the  designation,  and 
the  substitution  of  another  cestui  que  trust  in  his  place.  This 
was  not  the  only  mode  of  proceeding.  A.  might,  in  the  beginning, 
instead  of  reserving  the  power  to  himself,  have  conferred  it  upon 
another,  termed  a  '^  donee  "  of  the  power,  who  might  proceed  to 
"appoint  "  and  "  revoke  "  as  before.  It  is  plain  that  under  such 
circumstances  the  donee's  authority  is  limited  and  circumscribed 
by  the  power.  He  acts  not  as  owner,  but  under  a  delegated 
authority.  Though  not  an  agent,  he  is  an  instrument  of  an- 
other person,  and  must  follow  the  line  chalked  out  for  him.  If 
authorized  to  appoint  by  deed,  he  could  not  do  so  by  tvlll,  or 
vice  versa. 

Out  of  this  class  of  authorizations  springs  a  set  of  highly  com- 
plicated and  refined  rules,  some  of  which  are  too  subtle  for  prac- 
tical use.  The  subject  has  been  codified  in  New  York,  and  a 
statutory  set  of  rules  introduced  applicable  to  both  real  and  per- 
sonal property,  which,  though  an  improvement  on  the  common 
law,  still  require  careful  study  in  their  application,  and  present 
various  questions  not  free  from  difficulty.  The  idea  of  a  trust 
which  pervaded  the  old  law  has  been  removed,  and  the  power 
has  been  made  to  attach  to  property  wdiether  held  in  trust  or 
not.i 

1  The  principal  writers  upon  "  Powers  "  spects  •  one,  where,  if  a  transfer  of  a  fee 

are  Siigden    (afterwards     Lord    St.    Leo-  is  authorized,  the  person  or  class  of  per- 

nards),     Chance,     and     Farwell.       Sug-  sons  to  receive  the  estate  is   designated  ; 

den's  treatise    is  the  great  storehouse  of  and    the    other,    where    an    interest    less 

learning  upon  this  subject,  and  his  own  than  a  fee  is  dealt  with.     Each  kind  of 

views   carry   with   theui   great  intlaence.  power  may  be  bmeficicd,  when  no  person 

He  is   a   writer  of    authority.      Farwell's  other  tlian  the  donee  has  by  the  terms  of 

work  is  much  more  compendious,  but  it  its  creation  any  interest  in  its  execution, 

contains  the  recent  cases,   and   possesses  In    other     words,   such   a    grantee    may 

much  practical  utility.  exercise  the   i)ower  for  his   oion   benefit. 

The  New  York  regulations   are  found  Either  a  general  or  special  power  may  be 

in  the  Revised  Statutes,   Part  II.,  Chap,  in  trust  when  the  donee  is  not  to  exercise 

I.,  Tit.    II.,  Art.  3.      Powers    are    there  it  for  his  own  benefit,  but  a  duty  is  im- 

classified    into    such    as    are    general    or  posed  upon  him  to  make   use   of  it  for 

special,   or   are   beneficial    and    in   trust,  others.     If  the  duty  be  to  dispose  of  jyro- 

A  power  is  declared  to  be  general  where  ceeds  after  the  power  is  exercised,  as  for 

it  authorizes  an  alienation  of  property  in  example,  if  there  be  a  general  authority  to 

fee   to  any  alienee   whatever.      In    other  sell  to  any  one,  but  to  divide  the  proceeds 

words,  it  must  authorize  the  transfer  of  between  A.,   B.,   C,  and  D.,  then   there 

the  entire  interest  without  restriction  as  would  be  a  general  power  to  sell  in  trust  to 

to  persons.     In  opposition  to  this  broad  divide  the  proceeds.     On  the  other  hand, 

authority   there    may    be    a    limited     or  if  the   power  were  to  convey  to  specified 

circumscribed     power    called     a     special  persons,  there  would  be  a  "  special  power 

power.      It  may  be  limited  in  two   re-  ia  trust ; "    and  there  would  also  be  a 


464  THE  LAW  OF  TEESOXAL  PKOPERTY. 

Suspension  of  the  ownersliip  of  personal  property.  —  The  rules 
on  this  subject  apply  to  clauses  in  an  agreement  or  a  will  whereby 
the  ownership  of  property  does  not  for  the  time  being  become 
absolute,  but  is  made  to  depend  on  a  contingency  only  upon  the 
happening  of  which  the  ownership  is  to  become  absolute.  It  is 
readily  to  be  perceived  that  this  might  be  a  very  remote  event,  so 
that  during  all  the  intervening  period  there  would  be  no  deter- 
minate owner. 

The  postponement  of  absolute  ownership  to  a  remote  period  is 
opposed  to  the  policy  of  the  law.  A  rule  mainly  applied  by  deci- 
sion to  real  estate  is  also  applicable  to  personal  property.  Owner- 
ship at  common  law  could  not  be  postponed  beyond  a  life  or  lives 
in  being  at  the  time  of  the  creation  of  the  estate  or  interest,  with 
the  further  possible  period  required  for  the  gestation  of  a  child 
and  an  additional  suspension  of  a  period  of  twenty-one  years  as 
an  absolute  term. 

This  rule  is  the  slow  product  of  generations  of  judges  as  applied 
to  the  particular  state  of  things  existing  in  England.  It  has  long 
been  the  practice,  in  case  of  a  marriage,  to  settle  land  upon  the 
husband  for  his  life,  with  a  succeeding  estate  upon  the  wife  for 
her  life,  with  the  remainder  to  the  children  of  the  marriage, 
usually  by  entailment,  with  some  differences  of  form.  A  common 
form  is  on  the  sons  successively ;  in  case  of  death  without  issue, 
and  if  there  be  no  sons,  then  upon  daugliters ;  and  if  the  parties 

special  power  in  trust,  when  any  person  the  point  whether  the  donee  of  the  power 

other  than  the  grantee   is  designated    as  has   some  interest   in   tlie  property  over 

entitled  to  any  benefit  from  the  disposi-  which  the   power  is  exercised,   and   also 

tion  or  cliarga  authorized  by  the  power,  whether  the  exercise  of  it  in  some  way 

This  would  include  a  benefit  derived  from  acts  upon  the  interest  which  he  possesses, 

a  lease  of  the  property,  or  a  mortgage  of  Powers  from  this  point  of  view  are  either 

it,  where  that  was  authorized  by  the  power,  (a)   appendant,    (b)   in  gross,   or   (c)  col- 

and  was  according  to  law.  lateral.    Thus  if  the  donee  has  a  temporary 

The  whole  system  of  powers  in  trust  interest  in  the  property,  as  for  life,  and 
thus  embraces  :  (a)  cases  where  one  is  au-  the  power  acts  upon  that,  it  is  appendant ; 
thorized  to  sell  or  convey  property  with-  if  the  power  does  not  atl'ect  the  life  inter- 
out  restriction,  but  at  the  same  time  is  est,  but  only  the  succeeding  interest,  it  is 
required  to  divide  the  proceeds  in  a  pre-  m  (7?'oss  ;  if  the  donee  has  no  interest  what- 
scribed  manner  ;  (b)  where  one  is  required  ever,  but  is,  in  other  words,  a  stranger,  the 
to  convey  an  entire  interest  to  specified  power  is  collateral.  These  are  very  tech- 
persons,   the   restriction   being   upon    the  nical  distinctions 

poiuer  to  convey  instead  of  upon  the  dispo-  As  a  power  is  a  mode  of  creating  an 

sitioji   of   the  proceeds  ;    (c)    cases   where  estate,  it  should  be  exercised  in  such  a  way 

inferior  interests  or  estates  (such  as  leases,  as  not  to  ofl'end  against  rules  of  public 

mortgages,   etc. ),  or  others  less  than  the  policy.     The  rules  governing  the  general 

whole  are  created,  and  some  persons  other  subject  should  be  sought  in  the  treatises 

than  the  grantee  of  the  power  is  declared  to  referred  to,   and   in   the    reported    cases. 

be  entitled  to  them.  Careful  attention  must  be  given  in  New 

The   common-law  classification  is  dif-  York  to  the  statutes, 
ferent  from  this,  and  made  to  turn  upon 


VARIOUS   DISTIXCTIOXS   OF   OWNERSHIP.  465 

to  the  marriage  die  childless,  to  others,  perhaps  the  grantor  him- 
self. Each  of  these  uncertain  events  must  happen  during  the  life 
of  the  parents.  If  an  infant  child  should  survive  his  parents,  he 
would  be  able  at  twenty-one  to  dispose  of  the  property.  So,  if  the 
parents  were  surviving  when  a  child  entitled  under  the  settlement 
became  of  age,  they  could  unite  in  a  conveyance,  and  dispose  of 
the  estate.  The  power  to  sell  would  not  be  in  abeyance  or  sus- 
pended for  a  period  longer  than  their  two  lives,  and  the  minority 
of  a  child,  and  a  possible  period  of  nine  months  in  case  of  a 
posthumous  child. 

It  was  from  this  class  of  cases  that  the  rule  in  question  was 
first  worked  out,  and  the  facts  could  be  formulated  so  as  to  state 
that  the  ownership  of  property  could  be  suspended  for  lives  in 
being,  and  during  the  period  of  infancy  (twenty-one  years),  and 
nine  months  in  case  of  the  birth  of  a  posthumous  child.  After  a 
time  there  came  cases  in  which  the  suspension  was  for  more  lives 
than  two.  The  principle  was  deemed  to  be  the  same,  since  no 
matter  how  many  lives  might  be  named,  the  suspension  was  in 
reality  but  for  one  life,  that  of  the  longest  survivor. 

The  most  difficult  question  that  arose  was,  whether  the  twenty- 
one  years  could  be  taken  as  a  fixed  and  absolute  period,  without 
reference  to  infancy.  For  example,  a  testator  provides  that  his 
estate  shall  pass  to  a  non-existent  charitable  corporation  having 
powers  which  he  prescribes,  should  it  be  chartered  within  the 
period  of  twenty-one  years  after  his  death.  Such  a  provision  has 
no  reference  to  the  ordinary  elements  in  suspension,  namely, 
duration  of  life,  infancy,  or  gestation.  Is  this  lawful  ?  The 
answer  would  seem  to  be,  that  as  public  policy  underlies  this 
whole  subject,  there  can  be  under  the  authorities  no  public 
policy  opposed  to  a  moderate  suspension,  but  only  to  a  lengthened 
one,  and  that  twenty-one  years  is  a  moderate  period  in  analogy 
to  what  had  already  been  established  as  to  infancy,  and  is  accor- 
dingly valid. 1 

The  case  of  Cadell  v.  Palmer  is  an  instance  of  a  desire  on  the 
part  of  a  testator  to  go  nearly  to  the  extreme  verge  of  the  law. 
He  suspended  ownership  during  the  continuance  of  twenty-eight 
lives,  and  the  survivor  of  them,  and  a  fixed  period  of  twenty 
years  besides.  The  will  was  declared  to  be  valid,  as  the  twenty 
years  suspension  was  lawful  (with  or  without  the  lives),  as  being 
less  than  twenty-one  years,  which  was  the  extreme  limit.     The 

1  Cadell  V.  Palmer,  10  Bing.  140  ;  ou  really  disposed  of  the  question.  1  CI.  & 
appeal,  1  CI.  &  F.  372.  The  discussions  F.  pp.  399-410.  The  judges  in  advising 
in  the  House  of  Lords  turned  upon  the  the  Lords  enter  into  the  matter  of  reaso/i- 
question  whether  prior  decisions  had  not     abUness,  pp.  412,  417. 

30 


466  THE  LAW  OF  PEKSOXAL  PKOPEKTY. 

court  was  of  opinion  that  the  nine  or  ten  months  allowed  in  the  case 
of  a  posthumous  child  could  not  be  allowed  as  an  absolute  term.^ 

The  time  is  to  be  reckoned  in  all  cases  from  the  "  creation  "  of 
the  estate.  This  in  a  conveyance  is  from  the  delivery  of  the 
deed ;  in  the  case  of  a  will,  from  the  testator's  death,  since  the 
will  does  not  take  effect  until  that  time. 

This  subject  is  treated  in  the  law  books  under  different  names. 
When  the  writer  has  in  view  the  effect  of  suspension,  he  may  call 
it  a  '■'•perpetuity,''  or  suspension  of  ownership.  When  regard  is 
had  to  the  nature  of  the  provision,  it  may  be  called  "  remoteness.'" 
When  attention  is  directed  wholly  to  the  inability  to  sell,  it  is 
called  suspension  of  the  power  of  alienation.  These  terms  may 
be  applied  either  to  the  case  of  real  property  or  personal  property, 
including  therein  chattels  real. 

Cases  may  arise,  particularly  under  modern  statutes,  where 
there  is  no  strict  suspension  of  ownership.  The  ownership  is 
determined  and  fixed,  but  the  power  of  sale  is  withdrawn.  There 
is  a  marked  instance  of  this  kind  in  New  York,  where  a  trust  is 
created  to  pay  the  income  for  life  to  a  beneficiary  for  his  use. 
The  law  declares  that  the  beneficiary  shall  not  sell  or  assign  such 
an  income,  but  simply  receive  it  as  it  accrues.  This  prohibition 
suspends  the  power  of  sale  or  alienation,  and  the  trust  must  be 
kept  within  the  limits  of  the  rule  against  perpetuities.^ 

Most  of  the  American  States  adhere  to  the  common-law  rule 
fixing  the  limit  of  the  time  during  which  suspension  of  ownership 
can  be  allowed.  Others,  of  which  New  York  is  a  conspicuous 
example,  have  abridged  the  period  by  legislation.  The  number 
of  lives  has  been  cut  down  to  two,  and  the  twenty-one  years 
have  been  lopped  off,  except  in  a  single  instance,  applicable  solely 
to  real  estate,  which  is  where  a  future  estate  is  made  to  take 
effect  in  case  a  prior  estate  be  terminated  by  some  event,  —  for 
example,  death  occurring  during  the  minority  of  the  holders  of 
the  estate.^ 

There  is  a  single  but  important  exception  to  the  rule  against 
perpetuities.  This  is  the  case  of  charitable  trusts.  It  is  a  set- 
tled rule  in  equity  jurisprudence  that  property,  whether  real  or 
personal,  may  be  so  disposed  of  by  an  owner  that  its  income  shall 
be  perpetually  devoted  to  a  designated  charitable  purpose.  The 
word  "  charitable  "  is  not  here  used  in  its  popular  sense,  but  in 
the  technical  meaning  of  "  advantageous  or  useful  to  the  public." 

1  Cadell  V.  Palmer,  1  CI.  &  F.  372,  laid  down  has  been  followed  in  many 
421,  422.  subsequent  cases. 

2  Hawley  v.  James,  5  Paige,  318;  3  1  R.  S.  723,  §  16  ;  Manice  u.  Manice, 
reversed,    16  Wend.    61.     The   rule  here  43  N.  Y.  303. 


VARIOUS    DISTINCTIONS    OF    OWNERSHIP.  467 

It  includes  a  great  variety  of  dispositions  having  in  them  the  ele- 
ment of  public  utility,  such  as  the  repair  of  highways,  the  support 
of  the  poor,  the  foundation  of  schools,  colleges,  and  hospitals, 
the  erection  and  sustentation  of  churches,  etc.  As  the  law  of 
perpetuities  is  the  outgrowth  of  rules  of  public  policy,  it  is  mani- 
fest that  there  can  be  no  public  policy  opposed  to  the  devotion  of 
property  to  the  public  advantage  in  the  best  possible  manner. 
Experience  has  shown  that  permanent  endowments  are  essential 
to  the  highest  development  of  great  public  institutions  of  the  kind 
already  referred  to. 

The  fundamental  thought  underlying  the  doctrine  of  per- 
petuities is,  that  they  are  injurious  to  the  public  welfare,  in 
allowing  an  individual  owner  to  withdraw  his  estate  indefinitely 
from  exchange  and  from  the  requirements  of  trade,  by  im- 
posing obligations  on  his  successors  to  comply  with  his  views 
as  to  the  methods  of  promoting  family  aggrandizement  in  the 
distant  future.  He  is  thus  vainly  attempting  to  introduce  an 
element  of  stability  into  the  administration  of  his  estate  by  remote 
heirs,  while  natural  laws  decree  instability  and  change.  Accord- 
ingly, he  can  no  more  bind  the  proceeds  of  his  estate,  if  sold,  than 
the  estate  itself  in  the  form  that  he  left  it.  The  law  means  that 
after  a  limited  time  the  dead  man  shall  relinquish  his  grasp,  and 
cease  his  useless  contest  with  the  laws  of  nature.  The  old 
chancellors  argue  that  those  proprietors  who  strive  to  create 
perpetuities  fight  against  God.^  In  the  great  case  of  the  Duke 
of  Norfolk,  Lord  Chancellor  Nottingham,  after  describing  "  perpe- 
tuities," said,  "  such  do  fight  against  God,  for  they  pretend  to  such 
a  stability  in  human  affairs  as  the  nature  of  them  admits  not 
of,  and  they  are  against  the  reason  and  policy  of  the  law,  and 
therefore  not  to  be  endured."  2  The  persistency  of  language  by 
the  courts  shows  how  deep  an  impression  was  made  while  this  doc- 
trine was  germinating  of  the  unwholesomeness  of  the  fruit  that  it 
was  likely  to  bear. 

1  Gary's  Reports,  11  (41  Eliz.)  per  Lord     Choice    Cases    in    Chancery,    Stevens    & 
Edgerton,  Chancellor.  Haynes  reprint,  1870,  p.  49. 

2  Select  cases  in  Chancery,  p.  31  ;  also 


PART  III. 

TITLE  TO  PERSONAL  PROPERTY. 

Thus  far  it  has  been  the  object  to  consider  the  ownership  of 
personal  property,  the  various  interests  that  maj^  be  acquired  in  it, 
and  the  qualifications  imposed  upon  ownership  by  general  rules  of 
law.  It  still  remains  to  consider  how  property  may  be  acquired. 
This  inquiry  involves  the  title  to  property. 

There  are  various  modes  of  acquiring  title  to  personal  property. 
Some  writers  treat  these  simply  by  way  of  enumeration.^  Others, 
for  example  Chancellor  Kent,  arrange  them  under  principal  divi- 
sions, with  subordinate  titles.  His  method  leads  to  three  princi- 
pal divisions,  —  title  by  original  acquisition,  by  act  of  the  law, 
and  by  act  of  the  parties.  A  similar  arrangement  will  be  adopted 
here.  One  class  embraces  things  which  are  obtained  by  the 
claimant  himself  through  his  own  act.  The  title  is  not  derivative 
from  others,  but  originates  with  him.  The  plainest  case  of  this 
kind  is  mental  origination.  This  embraces  the  authorship  of  a 
literary  work,  or  the  production  of  a  picture  or  statue.  Other 
instances  are  the  finding  of  property  on  land  or  sea,  capturing  it 
in  time  of  war.  So  property  already  owned  may  receive  additions 
to  its  value  which,  by  being  incorporated  with  it,  become  in  law  a 
part  of  it.  From  this  fact  springs  a  form  of  title  termed  title  by 
"  accession."  So  goods  belonging  to  different  owners  may  be  com- 
mingled in  such  a  way  that  one  gains  the  title  to  the  whole. 
This  leads  to  a  special  form  of  title,  that  is,  by  "  confusion." 
Finally,  one  may  take  materials  belonging  to  mankind  in  com- 
mon, and  so  appropriate  them  to  his  own  use  as  to  become  owner, 
particularly  where  he  has  added  labor  to  them.  This  may  be 
termed  title  by  "production."  These  various  modes  of  acquirinp' 
title  will  now  be  considered. 

1  2  Bl.  Com.  c.  26. 


CHAPTER  I. 

TITLE   BY   ORIGINAL   ACQUISITION. 

DIVISION   I.  —  Title  by  Capture. 

There  are  two  modes  of  acquiring  property  in  this  way,  one 
upon  land,  and  the  other  upon  water.  The  first  is  called  booty, 
and  the  second,  ^jrz^e. 

Section  I.  Booty.  —  There  is  a  practical  distinction  of  much 
consequence  between  booty  and  prize.  As  to  the  latter,  a  court  of 
admiralty  has,  by  the  regular  course  of  law,  jurisdiction  to  deter- 
mine its  status,  that  is,  whether  it  is  lawful  prize  or  not.  This 
is  not  so  with  booty.^  The  right  to  that  does  not  depend  upon  a 
legal  adjudication,  but  upon  undisturbed  possession  by  the  captor 
for  a  reasonable  time.  This  defect  in  law  is  remedied  in  England 
by  statute,  conferring  upon  the  admiralty  court  jurisdiction  in 
this  class  of  cases.^ 

The  right  to  take  possession  and  liold  captured  property  is 
based  upon  the  right  of  conquest.^  Booty  vests  in  the  crown  in 
England  ;  here,  in  tlie  national  government.  It  has  long  been 
the  practice  in  England  to  award  the  booty  to  the  captor,  the 
crown  surrendering  its  right,  derived  from  its  prerogative.  Vari- 
ous claimants  have  had  their  conflicting  claims  disposed  of,  being 
settled  by  the  Lords  of  the  Treasury,  upon  some  assumed  prin- 
ciple. A  decision  did  not  form  a  precedent,  because  it  was  not 
rendered  by  a  court.  The  Banda  &  Kirwee  Booty  Case  was  the 
first  judicial  decision  in  England,  and  was  rendered  by  Dr.  Lush- 
ington  in  the  Court  of  Admiralty.  It  was  a  case  of  great  im- 
portance, involving  about  X 750,000.  The  money  was  divided 
between  the  commander-in-chief,  being  "in  the  field,"  with  all 
his  staff,  also  in  the  field,  on  the  one  hand,  and  the  division  that 
made  the  capture  on  the  other.  The  scale  on  which  the  distril)u- 
tion  was  to  be  made  among  the  several  ranks  was  not  under  the 

1  Booty  is  sometimes  called  "Army  &  Kirwee  Booty  Case,  L.  R.  1  Adm.  &  Ecc. 
Prize"  in  distinction  from  captures  at  sea,     109  (1866). 

which  are  called  "  Naval  Prize."  ^  Gilmer   v.  United   States,  14  Ct.  of 

2  3  &  4  Vict.  c.  65,  §  22.     See  Banda    Claims,   184. 


470 


THE  LAW  OF  PERSONAL  PKOPEKTY. 


order  of  submission  to  the  admiralty  judge  properly  before  him.i 
The  question  of  the  participation  of  other  divisions  in  the  fund, 
on  the  ground  that  by  their  "  community  of  enterprise  "  they  were 
constructive  captors,  was  extensively  discussed,  and  the  claim  was 
disallowed  under  the  circumstances.  It  was  decided  that  co-opera- 
tion entitling  to  a  share  must  directly  tend  to  produce  the  capture, 
and  that  it  must  be  strictly  limited  to  encouragement  to  the  friend 
and  intimidation  to  the  enemy .^ 

Questions  arose  in  this  country  during  the  conflict  with  the 
Confederate  States  as  to  the  capture  of  property  by  the  Union 
armies.  This  was  particularly  in  connection  with  the  capture  of 
cotton.  It  was  decided  by  the  Supreme  Court  of  the  United 
States  that  cotton  found  within  the  Confederate  territory  was  a 
legitimate  subject  of  capture  by  the  forces  of  the  United  States, 
even  though  it  belonged  to  a  foreigner  never  coming  to  this  coun- 
try, and  that  the  title  vested  in  the  United  States  as  soon  as  the 
cotton  was  reduced  to  firm  possession.^  "  There  is  no  necessity  for 
judicial  condemnation.  In  this  respect,  captures  on  land  differ 
from  those  at  sea."  *    In  these  proceedings,  the  owner  must  be 


1  Banda  &  Kirwee  Booty  Case,  supra, 
p.  268. 

2  The  distinctions  between  the  law  gov- 
erning booty  and  prize  are  pointed  out  in 
the  case.  It  was  argued  for  twenty-six  days 
by  many  of  the  ablest  counsel  in  Plngland. 
There  was  an  action  in  the  Court  of  Chan- 
cery to  distribute  the  fund  on  the  theory 
of  a  "trust,"  which  under  the  terms  of 
the  grant  was  disallowed,  no  technical 
trust  being  intended.  Kinlock  v.  Secre- 
tary, L.  R.  15  Ch.  D.  1.  Reference  may 
also  be  made  to  an  English  Blue  Book  pub- 
lished in  1864,  entitled  "  Report  of  the 
Commissioners  appointed  to  inquire  into 
the  Realization  and  Distribution  of  Army 
Prize." 

3  Young  V.  United  States,  97  U.  S.  39. 
The  same  principle  was  decided  in  Mrs. 
Alexander's  Cotton,  2  Wall.  404 ;  United 
States  V.  Padelford,  9  Id.  531  ;  Sprott  v. 
United  States,  20  Id.  459;  Haycraft  v. 
United  States,  22  Id.  81  ;  Lamar  v. 
Browne,  92  U.  S.   187. 

*  Young  V.  United  States,  supra, 
p.  60.  Cotton  was  peculiarly  the  subject 
of  confiscation  from  its  character.  It 
was  potentially  an  auxiliary  of  the  en- 
emy, and  constitituted  a  leading  means  by 


which  they  expected  to  perpetuate  their 
power.  It  might  have  been  destroyed. 
Congress  passed  the  so-called  "Abandoned 
and  captured  property  act "  (12  U.  S.  Stat. 
at  Large,  820)  both  to  avail  itself  of  its  just 
rights  as  a  belligerent,  and  to  recognize  its 
duties  under  the  enlightened  principles  of 
modern  warfare.  It  was  provided  that 
property  when  captured  should  be  sold, 
and  the  proceeds  paid  into  the  United 
States  Treasury.  Any  claimant  might 
within  two  j'ears  after  the  close  of  the 
rebellion  bring  suit  in  the  Court  of  Claims 
for  the  proceeds,  and  on  establishing  his 
ownership  and  that  he  had  never  given 
"aid  or  comfort"  to  the  rebellion,  receive 
the  residue  of  the  proceeds  after  deducting 
lawful  charges.  This  act  applied  to  all 
owners,  whether  foreigners  or  natives. 
United  States  v.  O'Keefe,  11  WalL  178.  (a) 
Tlie  words  "  aid  and  comfort "  in  the  statute 
mean  such  assistance  to  the  enemy  as  would 
constitute  treason  if  rendered  by  one  owing 
allegiance  to  the  United  States.  The 
Proclamation  of  Pardon  issued  by  the 
President  Dec.  25,  1868  (15  U.  S.  Stat, 
at  Large,  Appendix  No.  15)  relieved  all 
who  owed  allegiance  to  the  LTnited  States 
from  showing  as  a  basis  for  prosecuting 


(a)  See  generally  as  to  this  act,  Briggs  v.  United  States,  143  U.  S.  346. 


TITLE    BY    OEIGINAL    ACQUISITION.  471 

properly  notified.^  The  p7'02?erty  is  treated  as  the  offending  thing. 
It  is  not  confiscated  as  punishment,  but  for  the  purpose  of  weak- 
ening the  enemy.  This  principle  underlies  the  act  of  Aug.  6, 
1861,  chap.  60.2  The  act  of  July  17, 1862,  chap.  195,  proceeds  on 
a  different  principle,  which  was  to  confiscate  the  property  of 
traitors  by  way  of  'punishment.  This  was  confined  to  the  natural 
life  of  the  offending  oivner. 

In  case  of  confiscation  of  a  debt,  notice  should  be  given  to  the 
debtor,  in  order  to  obtain  jurisdictioyi^  Confiscation  proceedings 
under  the  laws  of  the  Confederate  States  had  no  effect  upon  the 
property  of  a  citizen  of  a  loyal  State. ^ 

Section  II.  Prize.  —  This  term  is  applied  to  such  property  as 
is  taken  at  sea  by  the  right  of  conquest  in  time  of  war,  whether 
from  an  opposing  belligerent,  or  from  a  neutral  violating  the  law  of 
nations  in  respect  to  war.  In  this  class  of  cases,  it  is  the  general 
rule  that  the  property  should  be  brought  for  condemnation  into  a 
port  belonging  to  the  captor.  Still,  under  peculiar  circumstances^ 
condemnation  may  take  place,  though  the  captured  property  is  in 
a  neutral  port,  and  it  may  be  sold  there.^  Such  a  case  must  be 
treated  as  an  exception,  and  cannot  be  cited  as  a  precedent.^ 

It  is,  perhaps,  a  correct  distinction  that  undisturbed  posses- 
sion by  a  captor  of  a  captured  ship  gives  him  a  title  de  facto., 
while  the  condemnation  by  a  prize  court  gives  the  title  de  jure? 

The  elements  usual  in  prize  cases  are  that  the  property  is 
taken  possession  of  at  sea,  and  that  it  belonged  to  an  enemy,  or  a 
neutral  violating  the  laws  of  war.  No  force  is  necessary.  Cotton 
abandoned  at  sea  and  picked  up  by  the  enemy  is  prize  rather  than 
"derelict"  property.^  Prize  accrues  to  the  government  or  State 
to  which  the  captor  belongs.  Individuals  derive  their  title  from 
the  State,  and  their  rights  are  limited  by  the  grant  to  them. 

As  a  rule,  as  has  been  seen,  the  captor  must  bring  the  prize 
into  some  port  of  his  own  country,  and  proceed  against  it  in  a 
court  having  jurisdiction,  called  "  a  prize  court."     This  in  Eng- 

their  claims  that  they  had  not  given  "aid  ^  Phnenix  Bank  v.   Risley,   111  U.    S. 

and  comfort"  to  the  enemy,  but  did  not  125,  affirming  Risley  v.  Phenix  Bank,  83 

help  one  who  owed  no  allegiance,  sucli  as  N.  Y.  318. 

a  foreigner  not  being  within  the  United  ^  Id. 

States,  but  having  property  captured  there.  *  Stevens  v.  Griffith,  111  U.  S.  48. 

Congress  must  intervene  in  favor  of  such  a  ^  Ti^e  Polka,  1  Spinks  Ecc.  &  Adm.  R. 

person.    He  can  otherwise  receive  no  assist-  447(1854). 

anee  from  the  amnesty,  nor  from  the  courts.  ^  The  Polka,  supra,  also  The  Henrick 

1  Chapman  v.  Phojnix  Nat.  Bank,  85  &  Maria,  4  Rob.  43,  and  6  Id.  138,  n. 
N.  Y.  437.     For  a  case  where  the  owner  ^  See  remarks  of  court  in  The  Gauntlet, 

recovered  the  proceeds  as  not  falling  within  L.  R.  4  P.  C.  184,  192. 
the  statute,  see  United  States  v.  Quigley,  ^  Seventy-eiglit  Bales  of  Cotton,  1  Low- 

103  U.  S.  595.  ell,  11  ;  The  Wando,  Id.  18. 


472  THE  LAW  OF  PERSONAL  PROPERTY. 

laud  is  a  court  of  admiralty.  Here  it  is  a  United  States  court ; 
at  present,  a  District  Court  having  by  act  of  Congress  the  re- 
quisite jurisdiction.  The  proceeding  is  in  ron,  or  against  the 
property  itself.  The  decision  of  a  prize  court  having  jurisdiction 
so  far  fixes  the  status  of  the  property  that  the  title  passes  to  the 
captor.  This  is  recognized  in  courts  of  other  countries,  including 
those  of  the  country  where  the  captured  property  originally 
belonged.  Redress,  if  the  decision  be  erroneous,  can  only  be 
obtained  by  diplomacy ;  and  if  that  fail,  by  war.  The  ground  of 
this  rule  is  that  the  legal  proceeding  is  against  the  thing  captured. 
Its  object  is  to  establish  the  status  or  ownership  of  the  thing, 
and  the  judgment  of  the  court  fixes  or  establishes  such  owner- 
ship. It  is  not  intended  to  develop  the  details  of  prize  law,  but 
only  to  point  out  the  relation  of  the  topic  to  the  title  to  personal 
property. 

The  origin  of  the  jurisdiction  was  first  clearly  stated  in  Lindo 
V.  Rodney ,1  a  great  case  decided  by  Lord  Mansfield,  where  it  was 
shown  that  a  prize  court  entertained  a  special  jurisdiction  in  time 
of  war  only,  conferred  upon  it  by  statute,  and  was  a  different  tri- 
bunal from  the  ordinary  oi  "  instance  "  court  of  admiralty,  sitting 
to  transact  maritime  legal  business  in  time  of  peace.  In  the 
United  States  the  district  court  has  authority  over  both  classes 
of  cases,  though  the  prize  jurisdiction  is,  for  the  most  part,  dor- 
mant in  time  of  peace.  For  further  information,  the  admiralty 
decisions  in  England  and  in  the  courts  of  the  United  States,  par- 
ticularly those  of  the  Supreme  Court  of  the  United  States,  as  well 
as  the  treatises  of  standard  text-writers,  should  be  consulted.^ 

DIVISION   II.  —  Title  by  Finding. 

This  topic  will  be  considered  under  two  sections  :  I.  Finding 
on  Land.     II.    Finding  at  Sea. 

Section  I.  Finding  on  Land.  —  Finding  takes  place  when  one 
who  is  not  the  owner  of  a  chattel  takes  possession  of  it  on  the 

^  Reported   in   a  note  to  Le  Caux  v.  Many  authorities    are    collected    by   Mr. 

Eden,  2  Doug.  pp.  612,  613.  David  Roberts,  in  his  Treatise  on  Adnii- 

2  Reference  may  be  made  to  the  stand-  ralty  and  Prize   (Part  II.).     There  is  in 

ing  interrogatories  in  2  Wheat.  Appendix,  this  book  a  useful  collection  of  the  names 

p.  81,  and  1  Ch.  Rob.   381,    and  "to  the  of  the  judges  of  the  United  States  Supreme 

U.    S.    Revised    Statutes,    §§    4613-4652,  Court,  and  the  date  of  their  appointment, 

to  the  rules  in  admiralty  of  the  Supreme  together  with  a  list  of  admiralty  reports, 

Court,    and   to    notes    in    the   Appendix  both   in    England   and   in   this    country, 

to   1  and   2    Wheat.       Important    block-  down  to  the  year  1868,  pp.  641-644.     The 

ade   cases  are  The    Franciska,   2   Spinks  treatises  on  International  Law  should  also 

Ecc.    &  Adm.  R.  113.     The  Prize  Cases,  be  consulted. 
2  Black,  635,  and  Blatchford's  Prize  Cases. 


TITLE    BY   OEIGINAL   ACQUISITION.  473 

ground  that  it  has  been  lost  ^  by  its  owner,  not  knowing  at  the 
time  who  is  owner,  nor  having  reasonable  grounds  to  believe  that 
he  can  be  found.  The  line  between  finding  and  stealing  is  nar- 
row, and  the  test  in  a  close  or  doubtful  case  is,  whether  the  so- 
called  finder  knows  at  the  time  who  the  owner  is,  or  has  reasonable 
grounds  to  believe  who  he  is.^  If  so,  and  he  appropriates  the 
chattel  to  his  own  use,  he  is  a  thief.  If  not,  he  does  not  become  a 
thief  by  a  subsequent  wrongful  appropriation  to  his  own  use.  The 
capital  fact  in  larceny  or  stealing  is  the  act  of  felonious  taMng. 

On  the  other  hand,  if  the  owner  is  not  known  at  the  time  of 
taking,  or  there  are  no  reasonable  grounds  for  believing  that  he  \ 
can  be  ascertained,  there  is  no  larceny,  though  the  finder  conceals 
the  goods,  or  converts  them  to  his  own  use,  after  ascertaining  who 
the  real  owner  is.^  (a)  This  rule  has  been  held  not  to  be  applic- 
able to  cattle  at  large  in  the  highway.*  The  principle  has  been 
stated  in  the  following  forms  in  the  cases  :  — 

If  one  claiming  to  be  a  finder  takes  goods  into  his  possession 
with  a  felonious  intent  to  deprive  the  owner  of  them,  and  then  has 
reasonable  means  of  ascertaining  who  is  the  owner,  it  is  a  case 
of  larceny.^  The  place  of  finding  may  be  material  as  tending  to 
show  whether  the  goods  were  really  lost  or  mislaid,  or  left  by  the 
owner  under  circumstances  which  would  lead  him  to  return  for 
them.^  One  who,  when  he  finds  a  pocket-book  containing  money, 
appropriates  it  with  intent  to  take  entire  dominion  over  it,  and  at 
the  same  time  reasonably  believes  that  the  owner  can  be  found,  is 
guilty  of  larceny."  Where  one,  at  the  time  of  finding,  has  reason- 
able ground  to  believe,  from  the  nature  of  the  property  or  the 
circumstances  under  which  it  is  found,  that  if  he  does  not  con- 
ceal, but  deals  honestly  with  it,  the  owner  will  be  ascertained,  he 
will  be  guilty  of  larceny  if,  at  the  time  of  taking  the  property  into 
his  possession,  he  intends  to  steal  it.^  The  finder  of  lost  goods  which 
have  no  marks  by  which  the  owner  can  be  identified,  and  who  does 
not  know  to  whom  they  belong,  is  not  guilty  of  larceny,  even  if 
he  does  not  exercise  diligence  to  discover  who  the  owner  of  the 
goods  may  be.^     The  rule  that  the  finder  of  property  so  marked 

1  There  must  be  a  loss.  Reg.  v.  West,  Porter  v.  State,  Mart.  &  Yerg.  (Tenii.) 
6  Cox  C.  C.  415.  226. 

2  People   V.   Swan,    1   Pork.    C   0.   9 ;  *  People  v.  Kaatz,  3  Park.  C.  C.  129. 
State  V.  "Weston,  9  Conn.    527;   State  v.          s  Com.  v.  Titus,  116  Mass.  42. 
McCann,  19  Mo.  249.                                               ^  Griggs  v.  State,  58  Ala.  425  ;  Roun- 

3  Lane  v.  The  People,  10  111.  305  ;  State  tree  v.  State,  Id.  381. 

V.  Taylor,  25  la.  273  ;  State  v.   Conway,  ">  Reed  v.  State,  8  Tex.  App.  40. 

18    Mo.     321 ;    People    v.    Anderson,    14  8  Brooks  v.  State,  35  Ohio  St.  46. 

Johns.  294 ;  People  v.  Cogdell,  1  Hill,  94  ;  "  State  v.  Dean,  49  la.  73. 


(a)  Allen  v.  State,  91  Ala.  19. 


474  THE  LAW  OF  PERSONAL  PROPERTY. 

that  the  owner  can  be  ascertained  is  guilty  of  larceny  if  he  con- 
verts it  to  his  own  use,  has  been  applied  in  the  case  of  a  bar  of 
bullion  lost  from  a  stage-coach.^ 

The  rule  as  laid  down  in  the  English  courts  is,  that  if  a  man 
finds  goods  that  have  been  actually  lost,  or  are  reasonably  sup- 
posed by  him  to  have  been  lost,  and  appropriates  them  with 
intent  to  take  the  entire  dominion  over  them,  really  believing 
when  he  takes  them  that  the  owner  cannot  be  found,  there  is  no 
larceny.  If  he  reasonably  believes  that  the  owner  can  be  found 
under  the  same  circumstances,  it  is  a  case  of  larceny, ^  The 
"  reasonable  belief "  referred  to  in  the  last  sentence  means  such 
belief  as  might  be  derived  from  the  finder's  previous  acquaintance 
with  the  ownership  of  the  particular  chattel,  the  place  where  it 
is  found,  or  the  nature  of  the  marks  upon  it.^  Reasonable  belief 
at  the  time  of  finding  that  the  owner  can  be  found,  is  insisted 
upon  by  many  decisions.*  Accordingly,  if  the  original  intention 
be  innocent,  no  subsequent  change  of  intent  will  constitute 
'  larceny.^  It  is  not  a  case  of  finding,  in  the  legal  sense,  where  a 
passenger  accidentally  leaves  goods  in  a  railway-car,  and  a  ser- 
vant of  the  road  appropriates  them.'^  Nor  where  a  purse  was 
accidentally  left  on  the  prisoner's  stall  and  appropriated  by  her. 
In  this  last  case  there  was  plainly  no  loss  of  goods.'^  The  court 
/  said  :  "  The  distinction  is  quite  clear  between  property  mislaid  — 
I  that  is,  put  down  and  left  in  a  place  to  which  the  owner  would 
\  be  likely  to  return  for  it  —  and  property  lost."  (a) 

Dropping  the  distinction  between  finding  and  stealing,  the  next 

point   to  be   considered   is  the   act   that   constitutes  "  finding." 

There  may  be  competing  claims  between  the  owner  of  property, 

such  as  land  or  a  building  upon  which  the  goods  are  claimed  to  be 

found,  and  one  who  may  casually  pick  them  up  or  lay  hold  of  them. 

/The  correct  view  in  such  a  case  is,  that  if  the  goods  were  lost  as 

/  distinguished  from  being  deposited,  the  casual  finder,  having  first 

I  obtained  possession,  would  have  the  better  right.     A  leading  illus- 

/  tration  is  found  in  the  case  where  a  commercial  traveller  picked 

\    up  a  parcel  (which  proved  to  contain  bank  notes)  on  the  floor  of 

\  a  shop  at  which  he  had  called  on  business.     It  was  decided  that 

\    1  State  V.  Clifford,  14  Nev.  72.  *  Reg.  v.  Deaves,  11  Cox  C.  C.  227  ; 

2  Reg.  V.  Thurborn  (or  Reg.  v.  Wood),  3  Reg.  v.  Knight.  12  Id.  102  ;  Reg.  v.  Mat- 
Cox  C.  C.  453;  s.  c.   1  Den.   C.  C.    387.  thews,  28  L.  T.  N.  s.  645. 
In  this  case  there  is  an  elaborate  opinion  5  j>eg_  ^^   Preston,  5  Cox  C.  C.  390. 
by  Parke,  B.     Reg.  v.  Clyde,  L.  R.  1  C.  ^  Rpg  ^_  pierce,  6  Cox  C.  C.  117. 
C.  R.  139.  7  Reg.  V.  West,  6  Cox  0.  C.  415. 

8  Reg.  V.  Thurborn,  1  Den.  C.  C.  387, 
396.  

(a)  Liverniore  v.  White,  74  Me.  452. 


TITLE    BY   ORIGINAL    ACQUISITION.  475 

he  was  the  finder,  rather  than  the  owner  of  the  shop.^  This  prin- 
ciple has  been  extended  to  the  case  of  a  domestic  servant  picking 
up  a  roll  of  bank  bills  in  the  public  parlor  of  a  hotel,  there  being 
no  presumption  in  such  a  case  that  the  money  belongs  to  a  guest 
of  the  hotel.^  So,  as  between  one  who  had  bought  a  safe  and 
another  who,  having  permission  to  use  it,  found  a  roll  of  bmk 
bills  between  the  outer  casing  and  the  lining,  it  was  held  that  the 
latter  was  the  true  finder.^ 

If,  however,  the  goods  had  been  in  the  lawful  custody  of  the 
owner  of  the  hotel  or  other  property  referred  to  in  the  various 
cases  cited  above,  the  latter  would  have  been  the  real  finder.* 
The  effect  of  finding  is,  that  the  finder  is  owner  as  to  all  per- 
sons except  the  true  owner.^  As  if  one  should  find  a  jewel,  and  he 
should  be  deprived  of  it  by  another  against  his  consent,  he  could 
recover  its  full  value.  He  would  hold  the  proceeds  in  trust  for 
the  true  owner,  if  discovered,  in  the  same  way  as  he  held  the  jewel 
itself.  As  between  him  and  the  rightful  owner,  the  title  is  in  the 
latter.  He  has  no  lien  upon  the  chattel  for  the  act  of  finding,  nor 
is.  he  entitled  to  any  reward.''  If,  however,  a  reward  be  offered,  a 
lien  is  created  to  the  extent  of  the  reward.'^  The  offer  of  a  reward 
is'in  the  nature  of  a  proposal  to  contract,  which  is  deemed  to  be 
a,ccepted  by  the  finder  on  complying  with  the  proposal. 

The  remedy  against  the  finder  by  the  owner  for  a  wrongful 
refusal  to  return  the  goods  is  an  action  for  the  specific  tiling 
(replevin),  or  at  his  election  an  action  for  conversion  to  obtain 
its  value. 

Reference  should  be  made  here  to  the  special  cases  of  treasure 
trove,  estray,  and  wreck. 

Treasure  trove  (treasure  found),  says  Bracton^  (following  the 
Roman  law),  "is  an  ancient  deposit  of  money  or  some  other 
metal,  respecting  which  memory  exists  not,  so  that  it  has  no 
owner,  and  so,  of  natural  right,  it  becomes  the  property  of  him 
who  has  found  it,  so  that  it  shall  not  belong  to  another.  Other- 
wise, if  any  one  shall  have  hidden  anything  under  the  ground 
for  the  sake  of  gain  or  of  fear  or  of  custody."  Accordingly,  a 
"  treasure  "  must  be  found  by  accident.  If  A.  found  a  "  treasure  " 
on  B.'s  land  otherwise  than  by  accident,  it  belonged  in  the  old  law 

1  Bridges  v.  Hawkesworth,  21  L.  J.  N.  s.  purchased  by  her  employer,  found  genuine 
(Q.  B.)  75  ;  s.  c.  15  Jur.  1079.  bank  bills  in  an  envelope. 

2  Haniaker  v.   Blanchard,    90    Pa.   St.  *  McAvoy  v.  Medina,  11  Allen,  548. 
377.    See  also  Matthews  v.  Harsell,  1  E.D.  ^  Armory  v.  Delamirie,  1  Strange,  505. 
Smith,  393.                                                                ^  "Wood  v.  Pierson,  45  Jlich.  313. 

a  Durfee  v.  Jones,  11  R.  I.  588  ;  Bowen  ^  Wentworth  v.  Day.  3  Jlet.  352  ;  Cum- 

SuUivan,  62  Ind.  281.     In  this  case,  a     miners  v.  Gaun,  52  Pa.  St.  454. 
servant,  while  sorting  a  bale  of  old  papers  8  2  Bracton  (Twiss'  ed.),  271. 


^Yg  THE  LAW  OF  PERSONAL  PROPERTY. 

altogether  to  B.  In  Justinian's  legislation,  it  belonged  one-half 
to  the  owner  of  the  land  where  found,  and  one-half  to  the  finder, 
though  if  the  finder  found  it  wholly  on  his  own  land,  it  belonged 
to  him.  In  Bracton's  time,  in  England,  it  belonged  wholly  to  the 
king  ;  and  the  same  view  is  stated  by  Lord  Coke  in  his  Institutes.^ 
Bra'cton  takes  the  distinction  that  by  "  natural  right "  treasure 
trove  belongs  to  the  finder,  while  by  "  the  law  of  nations  "  (mean- 
ing apparently  positive  law)  it  belongs  to  the  king.  The  reason 
why  it  belonged  to  the  king,  apparently,  is  that  it  is  a  case  of  goods 
without  an  owner  (bona  vacantia'),  as  in  the  case  of  one  dying 
intestate  without  next  of  kin.  Such  property  passes  either  to  the 
church  or  to  the  king,^  and  the  better  opinion  is,  to  the  latter. 
The  king  might  grant  it  to  a  private  person.  Mines  of  metal  be- 
long to  the  owner  of  the  soil,  except  gold  and  silver,  which  also 
by  common  law  belong  to  the  king.  The  charge  of  treasure  trove 
belongs  to  the  coroner  acting  for  the  king.  In  this  country,  the 
State  would  succeed  to  the  rights  attributed  in  this  section  to  the 

king. 

It  has  been  said  that  if  a  man  find  in  the  sea  precious  stones 
of  which  no  man  was  ever  proprietor,  these  do  not  belong  to  the 
king,  but  to  the  finder.^  But  it  seems  that  this  rule  will  not  be 
applied  to  Spanish  dollars  found  in  the  sands  of  the  seashore,  as 
they  will  be  presumed  to  have  come  there  by  the  loss  of  some 
wrecked  vessel.^  On  the  general  subject  reference  may  be  made 
to  the  authorities  cited  in  the  note.^ 

Estrays  or  strays  are  names  applied  to  domestic  animals, 
being  at  large  and  without  the  possession  of  their  owner.  The 
general  rules  of  finding  are  applicable  when  the  owner  is  not 
known.  If,  however,  the  owner  is  ascertained,  the  finder  will  at 
most  only  have  a  claim  for  the  necessary  expenses  of  keeping  the 
property .6  Straying  animals  may,  however,  be  regarded  from  the 
point  of  view  of  the  public  inconvenience  of  their  being  at  large 
in  the  highway,  or  as  trespassers  upon  the  property  of  others. 
From  these  points  of  view,  the  matter  of  their  detention  by  placing 
them  in  an  enclosure  or  "  pound  "  becomes  important,  and  the 
consequent  right  of  a  pound-keeper  to  hold  or  detain  them  until 
charges  and  damages  are  paid.  This  subject  is  largely  regulated 
by  statute  in  the  respective  States.  It  has  of  late  years  lost  much 
of  its  importance,  owing  to  the  increased  efficiency  of  laws  ex- 

1  3  Coke's  Inst.  132.  *  Talbot  v.  Lewis,  6  C.  &  P.  603. 

2  The  legal  maxim  was,  "(^iwf?  now  cff./M<  s  3  Coke's  Inst.   132,  133,  cap.  58;  2 
ChrisfMs,  capit  fiscus."     See  Atty-Gen'l  v.  Id.  168  ;  20  Viner's  Abr.  414,  415. 
Kohler,  9  H.  L.  Cas.  654.  «  Amory  v.  Flyn,  10  Johns.  102. 

3  Laws  of   Oleron,   Art.   34 ;    2   Black 
Book  of  the  Admiraltj%  pp.  470,  471. 


TITLE    BY   ORIGINAL    ACQUISITION.  477 

eluding  cattle  from  running  in  the  highways.  The  recent  cases 
are  mainly  based  upon  the  correct  construction  of  the  local  stat- 
utes, and  are  for  the  most  part  not  of  general  interest.  A  case  may, 
however,  be  referred  to  where  the  question  was  raised  whether  a 
statute  authorizing  cities  to  restrain  animals  from  running  at  large, 
and  to  sell  them  in  a  prescribed  way  for  the  recovery  of  a  penalty 
and  costs,  was  a  violation  of  the  constitutional  rule  that  one  is  not 
to  be  deprived  of  his  property  without  due  process  of  law.  It  was 
decided  that  under  the  circumstances  it  was  not.^  (a) 

Wreck  is  the  legal  term  applied  to  property  lost  or  shipwrecked 
at  sea  and  cast  up  on  the  shore.  Bracton  treats  of  this  subject, 
and  states  that  the  proper  application  of  the  word  "  wreck " 
is  to  the  case  where  the  ship  is  broken  up,  from  which  no 
living  thing  has  escaped,  and  principally  if  the  owner  of  the 
article  has  been  drowned.  Whatever  comes  to  land  therefrom 
shall  be  the  property  of  the  king,  nor  shall  any  one  else  claim  or 
have  anything  thereof  from  the  king,  although  he  may  have  land 
near  the  shore  of  the  sea,  unless  he  enjoy  a  special  privilege  con- 
cerning wreck.  This  rule  seems  to  be  based  on  the  supposition 
that  the  owner  is  not  known  (bona  vacantia),  so  that  it  is  only  a 
question  between  the  finder  and  the  king.  Bracton  proceeds  to 
say,  "  unless  it  be  that  the  t)'ue  oivner  coming  from  elsewhere  may 
show  by  certain  marks  and  signs  that  the  things  are  his  property, 
as  if  a  live  dog  has  been  found,  and  it  can  be  proved  that  he  is  the 
owner  of  the  dog,  it  is  thereupon  presumed  that  he  is  the  owner  of 
the  dog  and  of  the  things.  And  in  the  same  way,  if  certain  signs 
have  been  affixed  to  the  merchandise  and  other  things."  ^  This 
is  written  of  the  common  law,  and  is  in  substance,  that  if  the 
owner  cannot  be  found,  the  wreck  vests  in  the  king  ;  but  if  he  can 
be  shown  by  certain  signs  or  marks,  the  property  shall  belong  to 
him.  The  Statute  of  Westminster  (3  Edw.  I.  c.  4)  states  that  it 
is  agreed  that  where  a  man,  a  dog,  or  a  cat  escape  "  quick  "  (mean- 
ing alive)  out  of  the  ship,  that  such  ship,  &c.,  is  not  to  be  adjudged 
a  wreck,  but  the  goods  shall  be  kept  for  the  owner  and  restored  to 
him,  if  he  make  claim  within  a  year  and  a  day,  and  if  not,  they 
shall  remain  to  the  king.  The  correct  view  seems  to  be  that  the 
animals  named  are  put  as  instances,  and  that  the  question  of 
ownership  is  merely  matter  of  evidence.^ 

1  Fort  Smith  v.  Dodson,  46  Ark.  296.  2  2  Bracton  (Twiss'  ed.)  273. 

Strays  in  New  York  are  regulated  by  2  ^  Hamilton  v.  Davis,    5    Bnrr.    2732  ; 

R.  S.  517-522.  Code  of  Civ.  Proc.  §§  3082-  Bailiffs,  &c.  of  Dunwick  v.  Sterry,  1  a  & 

3115.  (6)  Ad.  831,  844. 

(a)  Burdett  v.  Allen,  35  W.  Va.  347  ;     1890,  as  amended  by  ch.  254,  Laws  of  1891, 
Coyle  V.  McNabb,  18  S.  W.  Rep.  (Tex. )  198.     and  clis.  61,  92,  and  252,  Laws  of  1892. 
(6)  See  also  Art.  VL  ch.  569,  Laws  of 


478  THE  LAW  OF  PEKSONAL  PROPERTY. 

Tlic  matter  of  wreck  is  in  general  a  question  of  jurisdiction 
between  the  courts  of  admiralty  and  common-law  courts.  The 
admiralty  jurisdiction  subsists  so  long  as  the  shore  is  covered 
with  water  ;  rights  enforceable  in  the  common-law  courts  exist  only 
when  the  land  is  left  dry.^  A  ship  cannot  be  considered  a 
"  wreck  "  (or  ivreccum  maria)  unless  at  the  time  of  taking  posses- 
sion she  is  either  on  the  shore  or  left  high  and  dry  on  land. 
Accordingly,  a  log  of  wood  found  floating  in  the  sea  near  the 
shore,  and  drawn  up  on  a  rock  by  a  person  wading  into  the  water, 
is  not  "  wreck,"  but  an  incident  to  admiralty  jurisdiction,  —  a  droit 
of  the  admiralty.  The  same  rule  would  be  applied  to  a  log  cast 
upon  the  beach  but  carried  back  to  sea  by  the  next  tide  and  taken 
wliile  floating.^  Grants  of  "wreck"  are  made  at  times  in  Eng- 
land within  a  specified  territory,  in  which  case  the  grantee  has 
a  special  property  so  as  to  prevent  a  wrongdoer  from  taking 
wrecked  property  away,  though  as  between  him  and  the  owner 
the  latter  may  have  the  title.^  A  wreck  may  become  an  obstruction 
on  the  seashore,  and  the  public  welfare  may  demand  its  removal. 
This  is  provided  for  in  England,  and  the  public  authorities  have 
power  to  destroy  and  remove  sunk,  stranded,  and  abandoned  ves- 
sels in  any  fairway  or  on  the  seashore  under  specified  circum- 
stances. The  statute  applies  to  the  cargo,  stores,  etc.,  as  well  as 
to  the  vessel  itself.* 

There  is,  in  New  York,  a  statute  regulating  wrecks  and  pro- 
ceedings with  reference  to  them  in  much  detail.  The  statute 
includes  goods  cast  by  the  sea  or  any  inland  lake  or  river  upon 
the  land,  and  provides  modes  for  ascertaining  title  to  the  wrecked 
property,  for  salvage  claims,  sale,  etc.  [h) 

Section  II.  Finding  at  Sea.  —  The  common-law  meaning  of 
the  term  "  sea  "  is  that  part  of  the  ocean  or  tributary  rivers  where 
the  tide  ebbs  and  flows.  In  the  United  States  an  enlarged  mean- 
ing has  been  given  by  the  courts  to  the  jurisdiction  of  courts  of 
admiralty,  and  waters  in  fact  navigable  have  been  included  in 
the  term  "  sea,"  though  above  tide  water. 

"  Derelict  property,"  in  the  admiralty  branch  of  the  common  law, 
means  property  at  sea  abandoned  by  its  owner.  On  the  other 
hand,  if  the  property,  though  abandoned,  be  cast  up  high  and  dry 

1  The  Pauline,  2  Eob.  Adm.  358.  s  Bailiffs,  &c.  of  Dunwick  v.  Sterry,  1 

2  Stacpoole  v.  The  Queen,  9  Ir.  R.  Eq.     B.  &  Ad.  831. 

619  (Ch.  App.);  Palmer  v.  Rouse,  3  H.  &         *  40  &  41  Vict.  c.  16.  (a) 
N.  505. 


{n)   Amended  by  52   &  53  Vict.  c.  5     by  ch.  254,  Laws  of  1891  ;  and  chs.  61, 
(1889).  92,  and  252,  Laws  of  1892,  §§  137-150. 

(i)  Ch.  569,  Laws  of  1890,  as  amended 


TITLE    BY   ORIGIXAL   ACQUISITION.  479 

on  the  shore,  it  is  "  wreck,"  and  not  derelict.^  It  would  accord- 
ingly seem  that  the  law  of  "  derelict "  in  this  country  would 
accompany  the  expanded  meaning  of  admiralty  jurisdiction. 

The  case  of  saving  derelict  property  is  quite  different  from 
that  of  "  finding  "  on  land.  The  rules  of  the  admiralty  or  mari- 
time law  prevail.  No  contract  is  necessary  to  entitle  the  salvor 
to  compensation.  The  maritime  law  regards  the  nature  and  value 
of  the  services  rendered  by  the  salvor  to  the  property  saved,  rather 
than  the  question  whether  he  rendered  the  services  through  the 
medium  of  a  contract  with  the  owner.  Still,  even  in  the  mari- 
time law,  if  the  property  be  not  derelict,  a  contract  is  necessary 
as  a  basis  for  compensation. 

The  important  fact  to  constitute  "  derelict "  is  abandonment 
Abandonment  depends  largely  on  intention.  The  master  and 
crew  must  leave  the  ship  with  intention  not  to  return.  This 
point  is  highly  important,  for  if  the  ship  be  utterly  abandoned,  the 
salvors  have  an  exclusive  right  to  possession  ;  if  not,  the  salvors 
are  bound,  on  the  master's  return,  to  give  up  the  charge  to  him, 
whereupon  he  may  refuse  to  continue  to  employ  them,  and  may 
employ  others.^ 

Abandonment  is  accordingly  largely  a  question  of  fact,  and 
all  the  circumstances  must  be  considered  in  determining  the 
intention.  Some  authorities  are  referred  to  in  a  note.^  (a)  Dere- 
lict applies  to  all  property  abandoned  at  sea,  though  not  having 
been  on  a  ship,  as  the  term  is  ordinarily  understood.  Thus,  the 
obelisk  known  as  "  Cleopatra's  Needle,"  having  been  abandoned 
in  a  vessel  constructed  entirely  for  the  purpose  of  conveying  the 
obelisk  from  Alexandria  to  England,  was  declared  derelict.  The 
court  fixed  the  value  of  the  obelisk  at  £25,000  sterling.'* 

The  amount  awarded  to  salvors  in  the  case  of  "derelict"  is 
usually  large,  and  is  frequently  about  one  half  of  the  value  of  the 

1  The  Pauline,  2  Rob.  Adm.  358  ;  Stac-  one  vessel  jump  on  board  the  other,  the 
poole  V.  The  Queen,  9  Ir.  R.  Eq.  619.  abandonment  is  not  so  complete  as  to 
Ante,  p.  477.  constitute  a  case  of  derelict.     The  Fenix, 

2  The  Champion,  Brown.  &  Lush.  69.  Swabey,  13,     But  where  it  appeared  that 

3  A  laden  barge  accidentally  breaking  a  vessel  was  picked  up  with  four  to  five 
loose  from  her  moorings  in  a  navigable  river,  feet  of  water  in  the  hold,  her  compasses 
and  drifting  about  with  no  one  on  board,  and  the  seamen's  clothes  having  been 
is  not  derelict.  The  Zeta,  L.  K.  4  Adm.  taken  off,  the  court  declared  her  "derelict." 
&Ecc.  460.  There  is  no  intent  to  abandon  The  Gertrude,  30  L.  J.  N.  s.  Adm.  130. 
in  this  case.  For  a  similar  reason,  if,  on  *  The  Cleopatra,  L.  R.  3  P.  D.  145. 
an  alarm  attending  a  collision,  the  crew  of 


(rt)  See  also  The  Ann  L.  Lockwood,  37    bone,   51   Id.   916  ;  The  Lepanto  [1892], 
Fed.   R.   233  ;  The  Eleanor,  48  Id.  843  ;     P.  122 ;  The  Capella  [1892],  P.  70, 
The  Fairfield,  30  Id.  700;  A  Lot  of  Whale- 


480  THE  LAW  OF  PERSONAL  PROPERTY. 

property  saved.  The  amount  depends  upon  the  meritorious  char- 
acter of  the  services.  Some  instances  are  cited  in  the  notc.^ 
There  is,  however,  no  jfixed  rule ;  but  the  nature  of  the  service, 
the  risk  run,  and  losses  voluntarily  incurred  by  salvors  may  be 
taken  into  account  where  the  value  of  the  property  saved  is  ample. ^ 
In  some  cases  even  more  than  half  may  be  awarded.^  The  residue 
belongs  to  the  owner,  if  he  can  be  ascertained  ;  if  not,  it  becomes 
public  property,  and  is  termed  a  "  droit  of  the  admiralty." 

DIVISION    III.  —  Title  hij  mere  Occupancy. 

There  is  a  number  of  cases  which  may  be  grouped  together  in 
this  connection,  involving  the  appropriation  by  an  individual  to 
his  own  use  of  things  which,  without  such  appropriation,  would 
be  without  an  owner.  The  law  permits  items  to  be  separated  in 
this  way  from  the  mass  of  unappropriated  things,  and  to  become 
by  appropriation  private  property.  Instances  of  some  importance 
are  gains  obtained  by  hunting  and  fishing,  appropriation  of  ice 
formed  in  navigable  streams,  etc. 

Legal  questions  may  arise  as  to  the  point  whether  occupancy 
has  become  so  complete  as  to  confer  ownership. 

The  principle,  as  stated  in  the  Roman  law,  is,  that  "  wild  ani- 
mals, birds,  and  fish,  —  that  is  to  say,  all  the  creatures  which  the 
land,  the  sea,  and  the  sky  produce,  —  as  soon  as  they  are  caught 
by  any  one  become  at  once  the  property  of  their  captor."  *  This 
rule  may  be  modified  by  game  laws,  but  the  Romans  had  no  game 
laws.  The  principle  may  also  be  qualified  in  our  law,  as  has  been 
shown  before,  by  the  fact  that  the  captor  was  at  the  time  a  tres- 
passer upon  the  land  of  another,  and  took  the  animals  there. '^ 

The  act  of  capture  may  be  complete  or  inchoate.  In  the  latter 
case  the  title  does  not  pass  unless  the  animal  is  brought  within 
the  power  of  the  captor, —  as,  for  example,  by  being  killed,  or  so 
wounded  or  entangled  in  nets,  etc.,  that  he  cannot  escape.  It  will 
not  be  sufficient  to  wound  an  animal  and  to  send  the  hunter's  dog 
in  pursuit,  even  though  the  animal  be  captured  by  the  dog.  It  must 
have  come  into  the  possession  of  the  hunter.^ 

1  Property  worth  £5,100,  salvage  The  City  of  Chester,  L.  R.  9  P.  D. 
awarded    £2,300,    The    Craigs,    L.    R.    5     182. 

P.  D.  186  ;  property  worth  £750,  salvage  3  The  Rasche,  L.  R.  4  Adm.  &  Ecc.  127 

£360,  The   Hebe,  L.   R.   4   P.   D.    217  ;  (1873). 

property  valued  at  about  £2,800,  salvage  *  Institutes    of    Justinian,    Book    II. 

£900,  The  Andrina,  L.  R.  3  Adm.  &  Ecc.  Title  I.  §  12  (Moyle's  ed.  Vol.  2). 

286;    one    half   the    value  awarded.  The  ^  Pierson  v.  Post,   3  Caines,  Term  R. 

Livietta,  L.  R.  8  P.  D.  24.  (N.  Y.)  175.     Ante,  p.  450. 

2  Bird  V.  Gibb,  L.  R.  8  App.  Cas.  559  ;  «  Buster  v.  Newkirk,  20  Johns.  75. 


TITLE   BY   OEIGINAL   ACQUISITIOX.  481 

Legislation  for  the  protection  of  wild  animals  is  resorted  to  both 
in  England  and  in  this  country.  In  England  the  laws  forbid  un- 
necessary slaughter  of  wild  animals,  including  birds  and  fish,  and 
thus  aim  to  prevent  their  extinction.  There  is  also  beneficent 
legislation  to  promote  increased  production  of  various  species. 
Reference  is  made  to  a  leading  statute  in  England  where  the 
legislation  has  been  carried  so  far  as  to  forbid  the  killing  of  wild 
birds  in  the  breeding  season.  The  act  extends  to  all  offences  of 
this  kind  within  the  jurisdiction  of  the  admiralty,  as  well  as  to 
offences  committed  on  land.  There  is  a  useful  enumeration  in 
a  schedule  appended  of  the  various  wild  birds  found  in  Great 
Britain.!  Certain  American  statutes  are  also  referred  to  in  a 
note.2 


DIVISION   lY.  —  Title  hy  Accession. 

By  this  expression  is  meant  the  case  where  some  addition  is 
so  made  to  an  existing  chattel  that  by  a  rule  of  law  it  belongs 
with  the  chattel  to  the  proprietor  of  the  latter.  Examples  are 
where  the  addition  is  attached  to,  incorporated  with,  or  derived 
from  a  chattel.  This  statement  will  include  the  young  of  domes- 
tic animals,  the  expenditure  by  one  person  of  labor  and  skill  upon 
the  chattel  of  another,  or  even  the  addition  of  materials.  Acces- 
sion is  found  as  a  title  in  the  law  of  real  estate,  and  gives  rise  to 
the  doctrine  of  "  fixtures."  Some  more  specific  statements  as  to 
this  subject  in  reference  to  personal  property  will  be  useful. 

Section  I.  The  Oumership  of  the  Young  of  domestic  Animals. 
—  The  general  rule  is,  that  the  young  belong  to  him  who  owns  the 
mother,  —  partus  sequitur  ventrem.  The  rule  is  deemed  to  rest 
upon  the  general  consent  of  mankind,  and  to  be  founded  upon 
principles  of  natural  justice.^  (b)  Where,  however,  the  animal  is  N 
leased  for  hire,  and  young  are  brought  forth  during  the  hiring,     \ 

1  43  &  44  Vict.  c.  35,  as  amended  by  oysters,  §  441,  also  bv  other  persons, 
44  &  45  Vict.  c.  51.  §  640,  cl.  8  ;  or  using  dredges  for  taking 

2  U.   S.    Rev.    Stats,    as  to    food    fish,     oysters  or  other  fish.  («) 

§§  4395-4398,  as  amended  by  25  Stat.  L.  1  3  ggg  Bracton,  Book  II.  ch.  II.  par.  1 ; 

(1888)  ;  as  to  seals  and  other  fur-bearing  Institutes  of  Justinian,    Book  II.  Tit.  I. 

animals  within  the  Territory  of  Alaska,  Id.  §  19.     It   was   stated  from   the    English 

§§  1956-1968,  as  amended  by  25  Stat.  L.  bench   by   Rickhill,   J.,   in  1406   (Year 

1009  (1889).     See  also  N.  Y.  Penal  Code  Book,  7    Hen.   IV.  fol.   9.  pi.  13).      See 

as  to  the  act  by  a  non-resident  of  taking  Tyson  v.  Simpson,  2  Hayw.  (N.  C.)  147. 

(a)  See  also  Arkansas  Cattle  Co.  v.  Laws  of  1892).  For  the  principal  amend- 
Mann,  130  U.  S.  69  ;  Meyer  Brothers  v.  ments  to  this  act,  see  chs.  321  and  573, 
Cook,  85  Ala.  417.  Laws  of  1893. 

{b)  See  also  The  Game  Law  (ch.   488, 

31 


482  THE  LAW  OF  PERSONAL  PROPERTY. 

they  belong  to  the  hirer.^  The  rule  does  not  extend  to  a  mere 
gratuitous  borrower. 

Section  II.    Addition  hy  Labor  or  hy  the  Use  of  new  Materials. 

This  is  called  in  the  Roman  Isiw  "■  specification''  meaning  the 

converting  of  another's  material  into  a  new  form  (species).  In 
that  system  the  line  of  inquiry  was,  under  what  circumstances 
does  such  an  act  give  the  title  to  the  new  product  to  him  who 
has  made  the  addition  ?  In  the  common  law,  the  point  of  view 
rather  is,  under  what  circumstances  does  the  owner  of  the  mate- 
rials have  a  right  of  property  in  the  whole  subject-matter,  includ- 
ing the  additions  ? 

The  older  Roman  jurists  looked  at  the  subject  from  two  opposite 
points  of  view.  One  class  tliought  that  the  change  of  form  had 
substantially  destroyed  the  original  substance.  Consequently,  he 
who  had  labored  upon  it  took  the  new  product  by  a  species  of 
"  occupation,"  as  though  he  were  a  finder.  Another  class  con- 
tested this  view,  by  claiming  that  the  case  was  one  merely  of  addi- 
tion, and  that  the  new  product  belonged  to  the  original  owner  of 
the  materials.  Justinian,  following  certain  jurists,  took  a  middle 
view,  and  ordained  that  when  the  manufactured  article  could  be 
reduced  or  brought  back  to  its  original  materials,  the  title  was  not 
changed  ;  otherwise,  it  passed  to  the  manufacturer.  He  says,  by 
way  of  illustration,  that  a  vessel  of  metal  can  be  melted  down,  — 
reduced  to  the  bronze,  silver,  or  gold  of  which  it  is  made.  Accord- 
ingly, the  ownership  remains.  On  the  other  hand,  it  is  impossible 
to  reconvert  wine  into  grapes,  or  oil  into  olives,  and  accordingly 
the  title  is  changed.  He  is,  however,  inconsistent  in  his  illustra- 
tions, for  while  he  states  that  if  an  author  write  in  letters  of  gold 
a  poem,  history,  or  speech  on  the  parchment  of  another,  the  owner- 
ship of  the  parchment  attracts  to  itself  the  poem,  etc.,  yet  if  a 
painter  paint  a  picture  on  the  board  of  another,  the  title  to  the 
picture  and  board  vests  in  the  artist.  The  sole  reason  given  for 
this  last  statement  is  that  it  would  be  absurd  were  it  otherwise.^ 

1  Wood  V.  Ash,  Owen's  R.  139.     The  the  young  of  the  rest ;  ...  for  it  is  his 

court  went  on  the  ground  that  if  this  rule  duty  to  cultivate  properly  and  use  them 

did  not  prevail,  the  lessor  would  have  the  like  a  careful  head  of  a  family."    Institutes 

rent,  and  the  lessee  would  have  no  profit,  of  Justinian,  (Mnyle's  ed.)  Book  IL  Tit.  I. 

See  also  Putnam  v.  Wyle}-,  8  Johns.  337  :  §§  37-39. 

Concklin  v.  Havens,  12  Id".  314  ;  Stewart  v.  ^  Several  leading  jurists  considered  this 
Ball,  33  Mo.  154  ;  Elmore  v.  Fitzpatrick,  distinction  as  unreasonable.  Gaius  II.  78. 
56  Ala.  400.  This  principle  is  found  in  In  Dig.  6,  1,  23,  3,  exactly  the  opposite 
the  Roman  law.  "The  term  'fruits,'  rule  is  stated.  It  had,  however,  the  ma- 
when  used  of  animals,  comprises  their  jority  of  voices  in  its  favor,  and  is  sup- 
young,  as  M'ell  as  milk,  hair,  and  wool ;  ported  by  Bracton,  quoting  not  only  from 
thus  lambs,  kids,  calves,  and  foals  belong  the  Institutes,  but  also  from  an  abstract  of 
at  once,  by  the  natural  law  of  ownership,  it  well  known  in  the  Middle  Ages,  called 
to  the  fractuary  (lessee),  .  .  .  [who]  ought  the  "  Surama  of  Azo."  Vol.  I.  (Twiss' ed.) 
to  replace  any  of  the  animals  ^Yhich  die  from  77. 


TITLE    BY   ORIGINAL    ACQUISITION.  483 

In  many  cases  the  value  added  becomes  thoronglily  incorporated 
with  the  original  article,  so  as  to  form  a  part  of  it,  so  that  the 
independent  existence  of  the  one  is  lost  in  the  other.  Illus- 
trations are  paint  put  upon  a  carriage,  thread  used  in  making  a 
garment,  and  the  like.  The  carriage  and  garment  would  attract 
the  paint,  the  dye,  or  the  thread  to  itself.  This  last  case  is  used 
both  in  the  Institutes  and  in  Bracton  as  an  instance  of  accession. 
"  Purple  "  is  suggested,  on  account  of  its  great  value  at  that  time. 
The  Roman  law,  with  its  pervading  spirit  of  equity,  required  that 
wherever  the  ownership  might  rest,  he  who  lost  his  title  should  be 
paid  by  the  other  for  the  value  of  his  property.  The  party  in  pos- 
session could  resist  an  action  by  the  other  unless  that  was  done, 
under  the  rule  that  "  no  one  can  have  his  wealth  increased  to  the 
detriment  of  another." 

One  of  the  earliest  cases  of  accession  in  the  English  law  books 
occurred  in  the  reign  of  Henry  VII. ^  It  appeared  that  A.  owned 
several  "  dickers "  ^  of  leather  which  came  through  the  act  of 
another  into  the  possession  of  B.,  who  made  up  the  leather  into 
slippers,  shoes,  and  boots,  and  that  A.  brought  his  action  to  ob- 
tain the  slippers.  It  was  claimed  by  the  defendant's  counsel  that 
the  incorporation  of  the  thread  of  the  shoemaker  with  the  leather 
changed  the  title.^  Bracton  was  cited  to  the  court,  and  appears 
to  have  been  the  only  authority  mentioned.  It  is  directly  to  the 
contrary.  The  court  discarded  this  view,  and  substantially  adopted 
the  rule  of  the  Roman  law,  that  the  shoes,  etc.,  belonged  to  the 
owner  of  the  leather.  In  the  course  of  the  decision  the  general 
distinctions  of  the  Roman  law  were  recognized.  This  is  a  highly 
interesting  case,  as  showing  how  the  rules  of  the  Roman  law  influ- 
enced the  courts  of  common  law  through  the  medium  of  Bracton.* 

Cases  of  accession  may  be  regarded  under  two  further  as- 
pects :  one,  where  the  addition  is  made  with  the  consent  or  under 
the  employment  of  an  owner  ;  and  the  other,  where  there  is  no  such 
consent  or  employment. 

In  the  first  class  of  cases  there  is  no  legal  doubt.    While,  philo- 
sophically, the  case  is  one  of  accession,  it  would  be  an  affront  to  ^ 
common  sense  to  maintain  that  the  title  to  tba  accessions  was  not 

.... . — — ~~,.jemi,ij«'rr't^ai-"  ■'•'"' 

^  Year  Book,  5  Henry  VII.  fols.  15,  16,  man    law,  —  that   of  bullion   made   into 

pi.  6.  money,  or  money  into  "  plate. "     Perhaps 

^  A   "dicker"  was   a   package  of  ten  the  thought   here  was,    that   money  had 

hides.  qualities  entirely  different  from  plate,  — 

^  The  theory  seemed   to  be   that    the  such  as  legal    tender,  —  and   accordingly 

thread  attracted  to  itself  the  leather,  in-  that  money,  when  reduced  to  plate,  could 

stead  of  the  leather  the  thread.  in  no  proper  sense  be  regarded  any  longer 

*  The  court,  however,  used  one  illustra-  as  money,   while  leather  in  the  form  of 

tion  apparently  inconsistent  with  the  Eo-  shoes  was  still  leather. 


484  THE  LAW  OF  PERSONAL  PROPERTY. 

ill  the  employer,  no  matter  how  large  their  value  might  be.  The 
manufacturer  or  mechanic  would  have  a  lien  or  right  to  detain  the 
goods  until  payment  was  made,  unless  credit  was  given.  This 
lien  would  be  lost  by  an  unconditional  delivery  of  the  goods  to 
the  employer,  whereupon  he  would  simply  become  a  debtor  to  the 
amount  of  the  mechanic's  bill.^  Still,  there  may  be  cases  in  which 
the  mechanic  furnishes  the  principal  part  of  the  materials,  in  which 
case  the  thing  when  completed  will  belong  to  him,  though  the 
employer  may  furnish  a  subordinate  part  of  the  materials.^ 

The  next  class  of  cases  embraces  those  where  the  work  is  done 
without  the  owner's  consent,  including  the  acts  of  wilful  wrong- 
doers. No  element  of  contract  is  found  here,  and  the  rule  is  that 
by  the  doctrines  of  accession  the  materials,  Avith  all  the  additions, 
belong  to  the  owner  of  the  principal  chattel.  Unlike  the  rule 
of  the  Roman  law,  no  comjiensation  need  be  paid,  since  in  our 
law  the  claim  for  compensation  must  rest  upon  contract.  It  is  a 
general  rule,  that  where  property  has  been  wrongfully  converted 
into  another  species  of  property,  if  its  identity  can  be  traced  in  its 
new  form,  it  will  belong  to  the  original  owner.^  (a)  Thus,  where 
wood  has  been  converted  and  made  into  coal,  the  coal  belongs  to 
the  owner  of  the  wood,  who  may  sue  for  its  value.'*  So,  if  a  tres- 
passer cut  trees  and  convert  them  into  railroad  ties,  the  owner  of 
the  trees  owns  the  ties.^ 

The  general  rule  of  the  Roman  law,  that  if  there  bj£.  an  entire 
change  in  the  chattel  of  one  by  the  labor  of  others,  the  ownership 
of  the  chattel  is  changed,  generally  prevails  in  this  country.  Au 
important  exception  has  been  grafted  upon  this  rule  by  some  courts, 
to  the  effect  that  if  the  change  be  made  by  a  wilful  wrongdoer,  the 
title  is  not  affected.  Thus,  if  corn  be  taken  by  a  wilful  trespasser 
from  an  owner  and  converted  into  whiskey,  the  latter  product  be- 
longs to  the  former  owner,  and  could,  of  course,  be  claimed  by  him 

^  Gregory  v.  Stryker,  2  Den.  628,  is  a  whether  the  transaction  is  a  sale  by  the 

good  ilhistration.     A  wagon  worth  $11.50  mechanic  or  a  bailment  to  him. 
was  so  repaired  as  to  be  worth  $90.     It  ^  Williams   v.    McClanaliau,    3    Mete. 

was  decided  that  the  wagon  as  repaired  (K}'.)  420. 

belonged  to  the  employer,  the  mechanic  '^  Riddle  v.  Driver,  12  Ala.  590  ;  Betts 

having   his  lien.     Worth  v.   Northam,   4  v   Lee,  5  Johns.  348  ;  Chandler  v.  Edson, 

Ired.  (Law),  102.  9  Id.  362. 

2  Story  on  P,ailments,  §  423.     Another  6  Strubbee  v.  Kailway,  78  Ky.  481. 

way  of  regarding  the  subject  is  to  inquire 

(«)  Guckenheimer  r.  Angevine,  81  N.  Y.  311  ;  Baker  v.  Meisch,  29  Neb.  227.     See 

394  ;  Eaton  v.  Munroe,  52  Me.  63.     Some  also  Isle  Eoyale  Mining  Co.  v.  Hertin,  37 

courts  have  refused  to  apply  this  rule  where  Mich.  332  ;  Railway  Company  v.  Hutchins, 

the  change  was  wrought  in  good  faith  and  32  Ohio  St.  571  ;  Lewis  v.  Courtright,  77 

produced  a  great  increase  in  the  value  of  the  la.  190.  Forsyth  v.  Wells,  41  Pa.  St.  291. 
property.     Wetherbee  v.  Green,  22  Mich. 


I 


TITLE   BY   ORIGINAL  ACQUISITION.  485 

as  against  a  purchaser  in  good  faith.i  This  decision  was  put  upon  ' 
an  assumed  rule  to  the  same  effect  in  the  Roman  law.^  There 
is,  however,  no  such  settled  rule  in  the  Roman  law,  it  being  in 
that  system  a  matter  of  great  dispute.  The  New  York  court  cites 
a  passage  from  the  Digest  of  Justinian  (not  the  Institutes')  to  sus- 
tain its  views.  This,  however,  will  be  found  to  be  but  the  opinion 
of  a  single  jurist,  while  he  is  contradicted  by  other  opinions  of 
different  jurists,  cited  in  the  same  book,  as  is  frequently  the  case 
in  the  Digests.^  The  question  thus  being  really  open,  it  would  well 
deserve  consideration  whether  the  exception  made  by  the  New 
York  court  is  not  wholly  inconsistent  with  the  general  rule  on 
which  that  court  proceeded,  for  the  test  of  ownership  is,  by  the 
authoritative  Roman  law,  whether  the  property  can  be  restored  to 
its  original  materials.  Thus,  Justinian  says,  "  If  the  new  species 
can  be  reduced  to  the  materials  of  which  it  was  made,  it  belongs 
to  the  owner  of  the  materials  ;  if  not,  it  belongs  to  the  person  who 
made  it.  For  instance,  a  vessel  can  be  melted  down,  and  so  reduced 
to  the  rude  material  -^  bronze  or  silver  or  gold  —  of  which  it  is 
made ;  but  it  is  impossible  to  reconvert  wine  into  grapes,  oil  into 
olives,  or  corn  into  sheaves,  or  even  mead  into  the  wine  and  honey 
of  which  it  was  compounded."  *  If  tliis  be  the  rule,  good  faith  in 
making  the  change  is  an  extraneous  fact,  and  wholly  immaterial. 
At  all  events,  the  rule  concerning  the  requirement  of  good  faith 
is  not  to  be  extended  to  an  involuntary  wrongdoer.^ 

The  subject  of  accession  assumes  great  importance  in  the  case  of 
a  wrongful  despoiling  of  the  United  States  government  by  cutting 
timber  from  its  lands.  There  is  to  some  extent  an  clement  of  pub- 
lic policy  in  the  case,  as  the  government  has  no  adequate  defence 
against  the  spoliator.  Should  the  government  sue  for  the  value  of 
the  timber  thus  removed,  it  would  be  entitled  to  recover  from  a 
wilful  wrongdoer  the  full  value  of  the  property  at  the  time  and 
place  of  making  its  demand  or  bringing  the  action,  with  no  deduc- 

1  Silsbury   v.    McCoon,    3  N.  Y.   379,  it  is  immaterial  whether  the  chansre  was 

reversing  the  same  case  in  4  Den.  332.  maile  bona  fide  or  mala  fide,  §  27L    Nearly 

'^  Id.  p.  387.  all  the  passages  from  the  Digests  show  that 

8  Digests  10,  4,  12,  3,  hy  Paulas.     See  the  former  owner  has  an  action  against  the 

Moyle's  Institutes,  Vol.  I.     At  the  top  of  wrongdoer  for  the  w7?w  of  the  goods  ta.ken, 

page  193  he  says,  "It  has  been  much  dis-  — a  so-called  action  of  "condition."    This 

puted  whether  bona  fides  (good  faith)  is  is  not  on  the  ground  of  ownership,  but  by 

essential  to  acquisition  by  spccificatio  (acces-  force  of  the  rule  in  that  system  of  law  that 

sion).  The  passages  bearing  upon  this  point  no  one  "  can  increase  his  wealth  by  despoil- 

are  Digests  13,   1,  13;  ib.   14,    3;  10,  4,  ing  another." 

12,  3  (the  only  one  cited  by  the  New  York  *  Institutes  (Moj'le's  ed.),  Vol.  2,  Book 

Court  of  Appeals),  41,  20  ;   47,  2,  52,  14."  II.  Tit.  T.  §  25. 
It  is  stated  in  Mackeldey's  Roman   Law  ^  Hyde  v.  Cookson,  21  Barb.  92. 

(Dropsie's  ed. )  that  in  the  case  in  question 


48 G  THE  LAW  OF  PEESONAL  PROPEKTY. 

tioii  for  his  labor  or  expenses.  So  if  one  should  purchase  inno- 
cently from  such  a  wrongdoer,  he  would  be  liable  for  the  value  at 
the  time  of  the  pui'chase.  On  the  other  hand,  if  the  trespass  were 
mistalven  or  unintentional,  the  value  at  the  time  of  the  conversion 
would  be  taken,  with  suitable  deductions  for  any  increment  of 
value  made  by  the  involuntary  wrongdoer.^ 


DIVISION   V.  —  Title  hy  Confusion. 

This  subject  is  derived  from  the  Roman  law,  and  embraces 
both  the  intermingling  of  solids  and  fluids  ;  the  former  is  called 
commixtio  ;  the  latter,  confusio.  In  that  system  it  is  very  closely 
allied  to  accession,  for  when  a  new  product  is  made  by  the  pour- 
ing together  of  fluids  it  is  called  by  the  same  name  {specifieatio'). 
Tiie  effect  of  confusion  upon  ownership  is  quite  different  in  that 
system  from  that  which  prevails  in  the  English  law,  since  in  the 
Roman  law  the  title  of  the  whole  passes  to  the  confuser,  while 
in  the  English  law  the  opposite  result  is  reached.  Confusion,  as 
understood  in  English  and  American  law,  is  the  wilfuLaU-d.fi'audu- 
lent  intermixture  of  the  chattels  of  one_person  with  the  chattels 
of  another,  without  the  consent  of  the  latter,  in  such  a  way  that 
they  cannot  be  separated  and  distinguished. 
'  Under  this  definition  (1)  the  confusion  must  be  wilful  or  inten- 
tional. If  by  accident,  or  by  the  unauthorized  act  of  a  third  per- 
son, goods  of  A.  and  B.  become  intermingled  so  that  they  cannot 
be  separated,  the  rights  of  the  parties  will  be  equitably  adjusted, 
by  treating  them  as  tenants  in  common,  having  rights  proportion- 
ate to  their  respective  interests,  as  they  originally  stood. 

(2)  Tlie  intermingling  must  be  against  the  consent  of  the 
^owner.^  If  made  by  mutual  consent,  the  rule  of  joint  owner- 
ship will  in  general  be  applicable.  An  instance  is  the  case 
where  grain  belonging  to  different  owners  is  stored  by  a  ware- 
houseman and  intermingled  in  one  common  mass  without  objec- 
tion by  the  owners.^ 

(3)  The  act  of  mixture  must  be  in  its  nature  fraudident ;  that 
is,  there  must  be  a  bad  intent,  and  some  harm  ensuing  to  the 
innocent  party.  («)  If  A.  should  intentionally  mix  his  goods  with 
those  of  B.  in  such  a  manner  that  they  could  not  be  separated, 
yet  if  the  amount  belonging  to  each  owner  was  known,  and  the 

1  Wooden  Ware  Co.  v.  United  States,  ^  Dole  v.  Olmstead,  36  111.  150.  To 
106  U.  S.  432,  and  cases  cited.                          the  same  effect  is  Chandler  v.   De  Graff, 

2  Nowlen  v.  Colt,  6  Hill,  461.  25  Minn.  88. 


(a)  Claliiu  v.    Continental  Works,   85  Ga.  27. 


I 


TITLE   BY   ORIGINAL  ACQUISITION.  487 

quality  was  the  same,  there  would  be  no  legal  fraud,  and  each 
owner  might  share  in  common.  If,  on  tlie  other  hand,  A.'s  goods 
were  of  an  inferior  quality,  or  if  the  amount  belonging  to  him  was 
not  known,  the  law  might,  for  want  of  sufficient  proof,  give  the 
whole  compound  subject-matter  to  the  innocent  party. ^ 

(4)  The  goods  must  be  incapable  of  separation  so  as  to  identify 
the  original  ownership.  Thus,  if  A.  should  place  his  furniture  in 
the  same  room  with  similar  goods  belonging  to  B.,  there  would 
be  no  confusion  if  A.  could  identify  his  articles.^  (a) 

Where,  however,  the  various  elements  of  the  definition  combine, 
a  case  of  confusion  arises,  and  the  wrongdoer  suffers  the  loss  of 
his  goods,  while  the  innocent  party  is  under  no  obligation  to 
render  compensation.  The  wrongdoer,  having  caused  the  diffi- 
culty, must  remove  it  by  satisfactory  evidence.  The  court  cannot 
undertake  to  do  it  for  him  without  such  aid. 

The  rule  that  one  mixing  his  goods  with  those  of  another  so 
that  a  separation  is  impossible,  loses  his  ownership,  is  a  doctrine 
that  is  adopted  to  prevent  fraud.  It  is  never  resorted  to  except 
in  favor  of  an  innocent  party  as  against  a  wrongdoer.^  It  would 
seem  that  the  strict  law  of  confusion  ought  not  to  be  applied 
wliere  goods  are  intermingled  by  the  negligence  of  one  of  the 
owners,  without  fraudulent  intent.^  A  number  of  authorities 
bearing  upon  this  subject  are  collected  in  a  note.^ 

1  Smith  V.  Sanborn,  6  Gray,  134  ;  Davis  general  subject,  see  Stearns  v.  Herrick, 
i;.  Krum,  12  Mo.  App.  279;  Ryder  v.  132  Mass.  114;  Lehman  v.  Kelly,  68 
Hathaway,  21  Pick.  298.  Ala.  192.     The  rule   applies  to  matters  of 

2  GofF  V.  Brainerd,  58  Vt.  468  ;  Smith  account.  Diversity  v.  Johnson,  93  111. 
V.  Sanborn,  supra.  547  ;  Jewett  v.  Dringer,  30  N.  J.  Eq.  291. 

3  Wooley  V.  Campbell,  8  Vroom,  163.  This   last  case  is  highly   illustrative.     A 

4  Pratt  V.  Bryant,  20  Vt.  333.  junk  dealer,  by  fraudulent  collusion  with 

5  See  Lupton  v.  White,  15  Ves.  432 ;  the  employees  of  a  raih'oad  corporation, 
Hart  V.  Ten  Eyck,  2  Johns.  Ch.  62,  108  ;  obtained  a  quantity  of  old  iron,  etc.,  at 
Beach  v.  Schmultz,  20  111.  185  ;  Seavy  v.  much  less  than  its  actual  weight  and 
Dearborn,  19  N.  H.  351  ;  Robinson  v.  value.  On  delivery  to  him  it  was  thrown 
Holt,  39  N.  H.  557;  Wilson  v.  Nasou,  indiscriminately  on  other  heaps  of  old  iron 
4  Bosw.  155.  The  rule  is  applied  to  logs  in  a  belonging  to  him,  so  as  to  be  indistinguish- 
stream  marked  in  the  same  way  as  another's  able.  It  was  held  on  appeal  that  tlje 
logs,  with  which  they  are  intermingled,  whole  mass  must  be  forfeited  to  the  rail- 
Dillingham  v.  Smith,  30  Me.  370  ;  road  company,  as  it  was  an  instance  of 
Stephenson  v.  Little,  10  Mich.  433;  Jen-  confusion.  The  "Idaho,"  93  U.  S.  575, 
kins   V.    Steanka,   19   Wis.  139.     On  the  586,  and  cases  cited. 


(a)  Queen  v.  Wernwag,  97  N.  C.  383. 


488  THE  LAW  OF  PEESONAL  PKOPEKTY. 

DIVISION   VI.  —  Title  to  incorporeal  Things  hy  mental  Action^ 
including  the  Appropriation  of  Trademarks. 

Under  this  general  head  may  be  ranked  the  following  topics  : 
Section  I.  Title  to  literary  property,  including  letters,  and,  by 
analogy,  pictures,  statues,  oral  lectures,  etc.  Section  II.  Title 
to  the  products  of  invention  or  discovery.  Section  III.  Title 
to  trademarks  by  appropriation.  These  different  modes  of 
acquisition  will  each  be  separately  considered ;  first,  with  refer- 
ence to  the  rules  at  common  law,  and  secondly,  with  reference 
to  those  created  by  statute. 

Section  I.  Title  to  Literary  Property.  —  I.  At  common  law. 
—  (1)  Literary  compositions  in  general.  —  Plays.  —  The  right 
of  an  author  to  his  literary  works  may  fairly  be  rested  upon 
intellectual  labor.  In  that  point  of  view  it  is  as  complete  as 
that  of  a  mechanic  who,  by  reason  of  skill,  has  constructed  a 
watch,  or  some  implement  by  muscular  labor.  If  an  author's 
work  be  published  by  another,  without  his  consent,  express  or 
implied,  the  publication  is  an  encroachment  upon  his  exclusive 
ownership.  To  protect  his  right  from  invasion,  he  is  entitled 
to  the  usual  remedies  in  the  case  of  a  violation  of  a  right  of  prop- 
erty,—  e.g.,  an  injunction.^  There  is  no  reason  why  damages 
should  not  be  recovered  in  an  action  at  law. 

Remedies  may  be  sought  in  the  United  States  courts  as  well  as 
in  a  State  court.^  So  an  unpublished  play  cannot  be  acted  on  the 
stage  without  the  owner's  consent.  It  should  be  added  that  while 
literary  property  is  in  this  state  or  condition  it  may  be  sold.  A 
distinction  would  thus  arise  between  an  author  and  a  mere  pro- 
prietor. An  alien  may  own  the  property  and  sell  as  well  as  a 
citizen.  If  the  former  should  sell  to  a  citizen,  while  the  latter 
would  be  a  proprietor,  he  would,  under  the  existing  United  States 
laws,  have  no  right  to  a  copyright,  as  he  would  be  in  no  better 
position  than  the  alien  author.  Still,  either  of  them,  as  long  as 
the  production  remained  unpublished,  would  have  an  ownership 
which  would  be  protected  by  the  courts.^  («) 

The  case  of  an  unpublished  play  demands  special  attention  as 

1  Little  V.  Hall,   18  How.   U.  S.  165;  2  u.  g.  Rev.  St.  §§  4967-4970. 

Bartlette  v.    Crittenden,  4  McLean,  300  ;  ^  Keene  v.  Wheatley,  9  Am.  Law  Reg. 

Bartlette  v.  Crittenden,  5  Id.  32.  33. 


(«)  Seech.  565,  Laws  of  1891  ;  26  U.  S.     tween  citizens  and  aliens  in  certain  cases, 
Stat.  L.  1106,  amendatory  of  former  provi-    post,  p.  495. 
sions,  and  abolishing  the  distinction  be- 


TITLE   BY   ORIGINAL   ACQUISITION.  489 

it  has  often  been  before  the  courts.  It  was  well  settled  that  the 
right  of  authors,  exclusive  of  copyright,  existed  at  common  law, 
and  that  the  State  courts  have  jurisdiction  to  protect  them  as  in 
the  case  of  other  common-law  rights  or  property  interests.^  Prop- 
erty in  a  literary  product  is  not  distinguishable  from  other 
personal  property.  It  may  be  sold,  and  may  pass  by  succession. 
It  must  at  common  law  be  as  fully  protected  by  the  courts  in  the 
case  of  an  alien  as  in  that  of  a  citizen. 

There  is  but  one  general  way  in  which  this  right  may  be  lost. 
This  is  by  the  dedication  of  the  work  by  the  author  to  the 
public.  If  it  has  been  so  dedicated,  the  work  has  become  public 
property,  and  henceforward  any  one  may  use  freely  that  which 
has  thus  been  cast  away.  In  this  view,  there  must  be  an  act  of 
relinquishment  by  the  owner  analogous  to  an  abandonment  of  his 
right  of  property  in  the  case  of  ordinary  chattels. 

In  the  special  case  of  a  play,  a  question  may  arise  whether 
there  has  been  "  a  dedication  "  by  the  act  of  placing  it  upon  the 
stage,  and  causing  it  to  be  acted.  The  correct  view  is  that  the 
right  publicly  to  represent  a  dramatic  composition  for  profit,  and 
the  right  to  print  and  publish  the  same  composition  to  the  exclu- 
sion of  others,  are  entirely  distinct,  and  one  may  exist  without 
the  other.  Dedication  does  not  take  place  until  the  author  does 
some  unequivocal  act,  indicating  an  intent  to  make  his  work 
over  to  the  public.  An  unqualified  publication  by  printing  and 
offering  for  sale  is  a  complete  dedication.  The  permission  by  the 
author  to  others  to  act  the  play  at  a  public  theatre  is  not  a  dedi- 
cation. The  manuscript  and  i\\Q  right  of  the  author  are  still 
within  the  protection  of  the  law,  in  the  same  manner  as  if  they 
had  never  been  communicated  to  the  public  in  any  form.^ 

There  has  been  much  difference  of  opinion  upon  a  single  point. 
This  is,  whether  a  spectator  attending  a  representation  could  law- 
fully reproduce  a  copy  of  the  play  from  memory,  and  then  publicly 
act  it  for  his  own  lienefit,  without  the  consent  of  the  owner.  It  is 
held  by  some  authorities  that  he  could,  since  the  permission  to 
attend  the  representation  gave  him  the  full  right  to  memorize  tlie 
play,  together  with  the  right  to  all  the  advantages  that  could  be 
derived  from  remembrance.  The  better  and  later  opinion  is,  that 
no  right  to  represent  the  play  can  be  obtained  in  this  manner  by 
a  spectator.^ 

1  Palmer  v.  De  Witt,  47  N.  Y.  532.  Gray,    545  ;  Boucicault  v.  Fox,  5  Blatch. 

2  Palmer  v.  De   Witt,    47  N".  Y.   532,     87,  98. 

542  ;  Parton  v.  Prang,  3  Cliff.  U.  S.  537  ;  ^  Keene  v.  Kimball,  16  Gray,  545,    to 

Boucicault  v.  Hart,  13  Blatoh.   47  ;  Rees  the  contrary,  is  overruled  by  the  later  case 

P.Peltzer,  75111.  475  ;  Macklin  y.  Richard-  of  Tompkins    v.    Halleck,  133   Mass.   32. 

son.  Ambler,   694;  Keene  i-.   Kimball,  16  See  also  French  y.Maguire,  55  How.  Pr.  471. 


490  THE  LAW  OF  PERSONAL  PROPERTY. 

If  the  owners  of  an  unpublished  opera  should  sanction  the  pub- 
lication of  the  libretto  and  vocal  score  with  a  piano  accompani- 
ment, and  retain  the  orchestration  in  manuscript,  another  person 
who  had  independently  arranged  a  new  orchestration  could  make 
use  of  the  published  matter  in  connection  with  his  orchestration.^ 
The  acts  of  the  owners  would  amount,  in  this  case,  to  a  dedica- 
tion. Still,  the  publication  of  tlie  song-s  and  vocal  score  would 
not  make  the  name  public  property,^ 

A  State  court  has  jurisdiction  of  an  action  to  determine  the 
rights  of  parties  to  an  agreement  to  have  and  perform  a  play.^ 
It  is  immaterial  in  the  matter  of  rights  that  a  play  is  a  joint 
production.'^ 

(2)  Letters.  These  are  protected,  both  on  the  ground  that 
they  are  literary  property,  and  also,  in  some  cases,  on  the  inde- 
pendent basis  of  the  trust  and  confidence  existing  between  the 
writer  and  the  person  addressed.  A  distinction  may  thus  exist 
between  the  ownership  of  the  paper  vested  in  the  receiver  of  the 
letter,  and  the  title  to  the  incorporeal  subject-matter  still  remain- 
ing with  the  author.  Each  of  these  may  pass  by  succession  to 
the  representatives  of  the  respective  parties. 

The  rights  of  the  parties  are  to  some  extent  conflicting.  The 
receiver  of  the  letter  is  deemed  to  be  the  owner,  and  can  bring  an 
action  against  the  writer  to  recover  it  back  from  him  in  case  he 
gets  it  into  his  possession.^  Still,  after  a  time,  adverse  possession 
-might  ripen  into  a  title  by  force  of  the  Statute  of  Limitations.^  As 
a  rule,  whatever  value  the  letters  may  have  as  autographs,  be- 
longs to  the  receiver.  On  the  other  hand,  the  author,  or  his 
representatives,  may  have  an  injunction  against  the  receiver,  or  his 
representatives,  to  prevent  the  publication  of  the  letters.'^  There 
is  an  exception  in  the  case  where  publication  is  necessary  to  the 
vindication  of  character,^  provided  that  the  letter  is  still  in  the 
receiver's  possession.^  If,  however,  a  solicitor  writes  a  letter, 
apparently  on  behalf  of  his  client,  he  has  no  such  property  as  to 
entitle  him  to  prevent  its  publication. ^'^ 

The  question  has  been  much  mooted  whether  the  letters,  to  ob- 
tain protection,  must  be  of  a  literary  character.  The  view  has  been 

1  Carte  v.  Ford,  l.^i  Fed.  R.  439  ;  Carte  Hopkinson  v.  Burghley,  L.  R.  2  Ch.  App. 
V.  Duff,  23  Blatch.  347.  447. 

2  Aronson  v.  Fleckenstein,  28  Fed.  ^  First  Troop  Phila.  Cavalry  v.  Morris, 
R.  75.     See  Carte   v.   Evans,   27  Fed.  R.  10  Am.  Law.  F.e,£(.  N.  s.  272. 

861.  "  Thompson  v.  Stanhope,  Ambler,  737. 

3  Widiner  v.  Greene,  56  How.  Pr.  91.  8  Perceval  v.  Phipps,    2   Ves.  &  B.  19. 
*  French    v.   Maguire,    55    How.    Pr.     See  Rice  v.  Williams,  32  Fed.  R.  437. 

471.  9  Gee  v.  Pritchard,  2  Swanst.  402. 

°  Oliver  v.  Oliver,  11  C.  B.  N.  s.  139  ;        ^  Howard  v.  Gunn,  32  Beav.  462. 


TITLE   BY   ORIGINAL   ACQUISITIOX.  491 

reached  in  some  cases  that  they  must  be,  otherwise  no  injunction 
will  be  granted. 1  Such  a  rule  imposes  upon  a  court  the  duty  of 
determining  whether  letters,  are  in  fact,  literary,  —  a  duty  which 
an  ordinary  judge  is  scarcely  capable  of  discharging.  The  better 
opinion  is,  that  there  is  no  such  rule,  and  that  the  writer  of  any 
letter  has  a  property  in  it,  which  the  proper  court  has  jurisdiction 
to  protect.^ 

(3)  Pictures  and  statues.  Similar  principles  must  be  applied 
to  pictures  and  statues.  Whatever  is  original,  and  capable  of 
legal  protection,  will  be  protected,  —  such  as  the  design  or  group- 
ing of  figures.  The  right  will  not  be  lost  by  exhibiting  a  picture 
with  a  view  to  obtain  subscribers  for  an  engraving.  This  rule 
was  applied  to  a  case  where  a  frequent  visitor  to  an  exhibition 
of  paintings  had  so  impressed  upon  his  memory  the  arrange- 
ment of  the  figures  that  he  could,  and  did,  reproduce  some  of 
them  from  memory,  so  as  to  make  a  copy  with  the  aid  of  a 
stereoscope.'^  A.  like  rule  was  applied  to  etchings  made  by 
Queen  Victoria  and  Prince  Albert  for  their  own  amusement,  and 
exhibited  to  acquaintances  or  friends.  The  act  of  exhibition  did 
not  destroy  their  title,  nor  prevent  a  court  of  equity  from  granting 
an  injunction  to  prevent  publication.*  This  case  decided  that  the 
right  of  property  of  an  author  enabled  him  to  withhold  his  work 
altogether  from  the  knowledge  of  others. 

(4)  Miscellaiieous  cases.  There  are  many  cases  which  have 
been  recognized  as  matters  of  literary  property,  although  not 
strictly  cases  of  authorship. 

A  translator  has  a  title  to  his  particular  translation  of  a  work, 
not  itself  protected  therefrom  by  copyright,  though  he  cannot 
prevent  others  from  making  translations.^  Annotations  tipo7i  the 
ivories  of  other  writers,^  including  additions,  improvements,  or  cor- 
rections, are  protected ;  ^  but  the  annotator  docs  not,  by  means  of 
his  notes,  obtain  any  ownership  in  the  work  to  which  the  annota- 
tions are  made.^ 

Other  instances  are  catalogues  ;  ^  monumental  designs ;  ^^  mar- 
ginal head  notes  of  law  cases,  prepared  by  a  law  reporter  for  a 
law  magazine ;  ^^  musical  compositions ;  ^^  and  maps  made  from 

1  Hoyt  V.  Mackenzie,  3  Barb.  Ch.  320.  6  Black  v.  Murray,  9  Scotch  Sess.  Cas. 

2  Woolsey  v.  Judd,  4  Duer,  379;  Pope     (3d  series),  341. 

V.  Curl,  2  Atk.  341.  "  Gary  v.  Longman,  1  East,  358. 

3  Turner  v.  Eobinson,  10  Ir.  Ch.  R.  »  Cary  v.  Fadun,  5  Ves.  24  ;  Barfield  v. 
121;   on   appeal.  Id.  510.     This  was  the     Nicholson,  2  Sim.  &  S.  1. 

well  known  picture  of  The  Dying  Hours  9  Hotten  v.  Arthur,  1  H.  &  ^l.  603. 

of  Chatterton.  w  Grace  v.  Newman,  L.  R.  19  Eq.  623. 

*  Prince  Albert  v.  Strange,  1  MacNagh-  ^^  Sweet  v.  Benning,  16  C.  B.  459. 

ten  &  G.  25.  ^-  Bach  v.  Longman,  Cowp.  623  ;  Piatt 

5  Wyatt  V.  Barnard,  3  Ves.  &  B.  77.  v.  Button,  19  Yes.  447. 


492  THE  LAW  OF  PERSONAL  PROPERTY. 

original  sources.  Accordingly,  no  property  can  be  obtained  in  a 
0013)'  of  an  existing  map  made  by  another,  though  it  has  been 
said  that  such  latter  map  may  be  used  as  a  means  of  correcting 
the  new  work.^ 

(5)  It  remains  to  notice  specially  the  case  of  breach  of  trust 
or  confidence,  etc.  This  case  is  illustrated  by  the  delivery  of  oral 
lectures  by  a  professor  to  his  class,  or  by  confidential  letters,  the 
intrusting  of  medical  recipes  to  a  clerk,  etc.  There  is,  in 
each  of  these,  an  element  of  confidence  which  justifies  a  court  of 
equity  in  protecting  by  an  injunction  the  rights  of  the  party  repos- 
ing the  confidence. 

The  right  to  protect  oral  lectures  is  illustrated  by  the  case 
of  the  lectures  of  Dr.  Abernethy.2  It  was  held  that  as  these  were 
delivered  to  a  class  of  persons,  even  though  they  were  taken 
down  by  the  hearers,  there  was  no  authority  to  publish  them. 
This  view  rested  both  on  the  ground  of  an  implied  contract  or 
trust,  and  on  the  further  proposition  that  no  one  who  attended 
could  transfer  to  a  third  person  the  right  to  publish;  for  the  latter 
would  also  be  bound  by  the  implied  contract  not  to  print,  etc. 
It  was  further  said  by  the  court  that  there  was  nothing  in  the 
relation  which  Dr.  Abernethy  held  as  lecturer  in  St.  Bartholomew 
Hospital  (where  the  lectures  were  delivered)  which  would  pre- 
clude the  plaintiff  from  having  a  property  in  the  lectures,  without 
some  evidence  to  show  that  he  ought  not,  under  all  the  circum- 
stances of  the  case,  to  be  regarded  as  owner. 

This  question  was  not  fully  settled  by  the  decisions  in  favor  of 
Dr.  Abernethy,  and  was  only  finally  disposed  of  in  the  English 
courts  in  1887.  The  rule  was  then  laid  down  that  a  professor  in 
a  university  who  delivers  orally  in  his  class-room  lectures  which 
are  his  own  literary  composition  does  not  communicate  such  lec- 
tures to  the  whole  world,  so  as  to  entitle  any  one  to  republish  them 
without  the  permission  of  the  author.  The  principle  was  applied 
to  the  case  of  a  professor  in  a  Scottish  university,  delivering  lec- 
tures as  a  part  of  his  ordinary  course  to  students  who  were 
admitted  on  payment  of  the  prescribed  fees.^ 

On  similar  grounds  it  has  been  decided  in  this  country  that 
where  one  permitted  pupils  to  take  copies  of  his  manuscripts  for 
the  purpose  of  instructing  themselves  and  others,  he  did  not 
thereby  abandon  the  manuscripts  to  the  public.^  Another  in- 
stance of  trust  and  confidence  is  that  of  confidential  letters. 
The  publication  will  be  enjoined  on  the  special  ground  of  breach 

1  Kelly  V.  Morris,  L.  E.  1  Eq.  697.  ^  Caird  v.   Sime,   L.  R.   12   App.  Cas. 

2  Abernethy    v.    Hutchinson,    3  L.  J.     H.  of  L.  Sc.  326  (1887). 

(Ch.)  209  ;  s.  c.  1  Hall  &  Twells,  28.  *  Bartlettei;.Crittenden,4 McLean,  300. 


TITLE    BY   ORIGINAL    ACQUISITION. 


493 


of  trust.i  A  similar  rule  was  applied  to  medical  recipes  intrusted 
b}^  one  who  compounded  them  as  proprietor  to  a  clerk."  {a)  The 
laws  of  Congress  carry  out  the  general  principles  considered  in 
this  section  by  giving  an  action  to  the  proprietor  of  any  manu- 
script printed  without  his  consent,  provided  he  be  a  citizen  of  the 
United  States  or  a  resident  therein.-^  (i) 

The  title  to  literary  property,  as  has  been  seen,  may  be  lost  by 
abandonment  or  dedication.  This  takes  place  where  the  work  is 
published  without  compliance  with  the  copyright  laws.  Under 
such  circumstances  the  publication  of  the  work  so  abandoned  is 
freely  open  to  all. 

It  may  be  added  that  no  legal  protection  will  be  given  to  works 
of  a  libellous  or  immoral  tendency.  There  can  be  no  property  in 
such  a  work,  whether  copyrighted  or  not;^  nor  will  a  work  based 


1  Earl  of  Granard  v.  Dunkin,  IBall  & 
B.  207. 

2  Yovatt  V.  Winyard,  1  J.  &  W.  394 ; 
Green  v.  Folgliam,  1  Sim.  &  S.  398. 

3  Laws  of  1870,  ch.  230,  §  102 ;  U.  S. 
Kev.  St.  §  4967. 

4  Stockdale  v.  Onwhyn,  5  B.  &  C.  173  ; 
Southey  v.  Sherwood,  2  Mer.  435.  There 
is  not  a  great  deal  of  adjudication  upon 
the  point  whether  immorality  in  a  liter- 
ary work  takes  away  all  right  of  prop- 
erty. There  are  two  modes  in  which  the 
question  has  been  presented  :  one,  in  an 
action  or  suit  for  an  injunction  in  equity  ; 
the  other,  in  an  action  at  law  for  dam- 
ages. The  latter  ])roceeding  would  most 
distinctly  test  the  matter  of  oivnership. 
The  first  judicial  remark  upon  this  subject 
appears  to  have  been  made  by  Eyre,  C.  J., 
in  a  case  where  the  celebrated  Dr.  Priestley 
brought  an  action  against  "the  hundred" 
(a  political  district)  for  riotous  proceedings 
of  a  mob  in  which  a  part  of  the  property 
alleged  to  have  been  destroyed  consisted  of 
unpublished  manuscripts.  It  was  urged 
by  the  defence  that  Dr.  Priestley  was  in 
the  habit  of  publishings  work  injurious 
to  the  government.  The  Chief  Justice 
said  that  evidence  of  this  kind  was  fit  to 


(a)  A  photographer  may  be  restrained 
from  selling  or  exhibiting  photographs  of 
his  customers  without  their  consent.  Pol- 
lard V.  Photographic  Company,  L.  R.  40 
Ch.  D.  345  ;  cf.  Corliss  v.  E.  "w.  Walker 
Co.,  57  Fed.  R.  434  ;  Schuyler  v.  Curtis, 
64  Hnn,  594. 

{b)  See   §  9  of  ch.  565  of  the  Laws  of 


be  offered  to  defeat  a  recovery.  Though 
this  remark  was  but  a  dictum,  it  subse- 
quently ripened  into  decision.  (See  argu- 
ment of  Lord  Brougham  in  Stockdale  v. 
Onwhyn,  supra,  pp.  173,  174,  and  of  Sir 
Samuel  Ro.milly,  in  Southey  v.  Sher- 
wood, supra,  p.  437.)  In  Stockdale  v. 
Onwhyn  the  point  was  directly  decided  in 
a  common-law  action  that  there  could  be 
no  property  in  an  immoral  work  professing 
to  be  an  account  of  the  amours  of  a  cour- 
tesan. In  this  case  the  book  had  been  copy- 
righted, and  the  action  was  brought  for 
damages  for  publishing  a  pirated  edition. 
This  view  is  confirmed  by  Poplett  v.  Stock- 
dale,  Ry.  &  M.  337  ;  Wright  v.  Tallis, 
infra,  —  a  case  of  fraudulent  representa- 
tion, —  went  upon  the  same  ground.  The 
equity  view  is  found  in  the  case  of  Southey 
V.  Sherwood.  In  this  case  the  poet  Southey 
had  lent  the  manuscript  of  "  Wat  Tyler" 
(as  yet  unpubli-shed),  but  had  made  no 
assignment  of  it.  The  defendant  pub- 
lished, without  his  consent.  An  injunc- 
tion was  refused.  The  court  intimated  an 
opinion  that  an  immoral  book  could  not 
be  protected  by  an  injunction,  referring  to 
the  prior  case  of  Walcot  v.  Walker,  7 
Ves.  1. 


1891  (26  U.  S.  Stat.  L.  1106),  abolishing 
the  requirement  that  the  author  or  pro- 
prietor must  be  a  citizen  or  resident  of  the 
United  States,  and  giving  to  aliens  the 
same  protection  as  to  our  own  citizens 
under  certain  conditions,  as  to  which  see 
§13. 


494  THE  LAW  OF  PERSONAL  PROPERTY. 

upon  fraud  {crinien  falsi)  be  the  subject  of  legal  ownership.^  This 
last  proposition  does  not  extend  to  cases  where,  though  a  work 
may  be  written  under  a  fictitious  name,  there  is  no  serious  design 
to  deceive,  or  to  make  gain  and  profit  by  a  false  representation.^ 
One  may  fail  to  obtain  a  right  of  property  in  a  literary  work  pro- 
duced by  himself,  on  the  ground  that  its  production  was  a  part  of 
his  duty  in  an  employment  by  the  public  or  State.  Thus,  where  a 
voyage  of  discovery  had  been  made,  and  a  narrative  of  it  prepared 
under  the  orders  of  the  British  government,  it  was  held  that  the 
author  of  the  narrative  had  no  property  in  it.^  This  would  espe- 
cially be  the  case  if  there  were  an  understanding  between  him  and 
the  government  that  the  sketches  were  to  be  public  property.* 

The  remedies  when  the  right  of  property  in  an  unpublished 
book  is  violated  are  three-fold  :  first,  an  action  at  common  law ; 
secondly,  a  suit  in  equity  for  an  injunction  founded  on  the  com- 
mon-law right;  thirdly,  a  suit  in  equity,  where  the  piracy  has 
been  accompanied  by  circumstances  of  fraud  or  breach  of  trust, 
confidence,  or  contract,  express  or  implied.^ 

11.  Literary  property  as  protected  by  statute,  or  copyright.  — 
The  term  "  copyright "  strictly  means  such  statutory  protection 
as  is  given  to  authors,  etc.,  in  general  securing  them  the  right  to 
the  exclusive  sale  of  their  productions  after  publication,  though 
in  the  case  of  plays,  granting  the  exclusive  right  to  represent  them 
on  the  stage  as  well.  It  is  sometimes  used  as  meaning  the  right 
of  ownership  prior  to  publication.  It  is  used  in  the  present  dis- 
cussion in  the  former  sense. 

(1)  Theory  and  nature  of  copyright.  —  While  it  is  now  con- 
ceded that  an  author  has  a  common-law  right  of  property  in  his 
work  while  unpublished,  yet  it  is  held  by  the  court  that  publica- 
tion is,  in  its  own  nature,  a  dedication  of  the  work  to  the  public. 
The  thoughts  and  forms  of  expression  are  now  the  common  property 
of  all  mankind,  like  air  and  sunlight.  Accordingly,  it  needs  the 
intervention  of  statute  law  to  repel  this  presumption  of  dedication, 
and  to  give  the  author  an  exclusive  right  to  multiply  copies  and 
to  sell  them. 

Statutes  of  this  kind  give  the  author  an  exclusive  right  to  mul- 
tiply and  sell  copies  for  a  prescribed  time,  whereupon  the  work 
becomes  common  property.  This  rule,  in  the  great  mass  of  cases, 
furnishes  adequate  protection,  as  the  time  designated  in  the  stat- 
ute is  usually  sufficiently  long  to  have  introduced  the  work,  if 

i  Wright  ?'.  Tallis,  1  C.  B.  893.  Heine  v.  Appleton,  4  Blatch.  125. 

2  Per  TiNDAL,  C.  J.,  1  C.  B.  906.  6  Turner  v.  Eobinson,  10  Irish  Chan.  R. 

3  Nicol  V.  Stockdale,  3  Swanst.    687;  121,131,  132. 
Com.  V.  Desilver,  3  Phil.  (Pa.)  31. 


TITLE   BY   ORIGINAL   ACQUISITION.  495 

intrinsically  valuable,  into  general  use,  and  to  embrace  a  large 
part  of  the  sales. 

In  the  case  of  plavs,  the  copyright  law  goes  further,  and  pro- 
tects the  exclusive  right  of  public  representation  upon  the  stage. ^ 
A  similar  right  exists  under  the  terms  of  English  statutes.^ 
Before  these  statutes,  it  was  held  that  a  proprietor  of  a  copyright 
could  maintain  no  action  against  one  who  acted  his  play  on  the 
stage. ^  By  a  statute  cited  in  the  note  "*  an  exclusive  right  to  the 
performance  of  published  musical  compositions  is  given  in  Eng- 
land.^ Tliis  last-named  right  is  even  more  extensive  than  that 
attached  to  dramatic  compositions.^ 

A  copyright  is  incorporeal  property.  It  cannot  be  sold  on  an 
execution.'''  Accordingly,  if  a  map  were  engraved  on  a  copper- 
plate, and  the  latter  were  sold  on  an  execution,  the  purchaser 
would  acquire  no  right  to  multiply  copies  of  the  map.  The  copy- 
right can  only  be  reached  by  a  creditor  through  the  medium  of  a 
court  of  equity  making  a  proper  order  under  all  the  circumstances 
of  the  case. 

(2)  Who  may  take  a  copyright  under  the  United  States  laws.  — 
An  applicant  for  a  copyright  must  be  a  citizen  of  the  United  States 
or  resident  therein.  Non-resident  foreigners  are  excluded.  The 
language  of  the  statute  is,  "  Any  citizen  of  the  United  States,  or 
resident  therein,  who  sliall  be  the  author,  inventor,  designer,  or 
proprietor  of  any  book,"  etc.  The  executors,  administrators, 
or  assigns  of  any  such  person  are  also  included.^  (a) 

1  U.  S.  Rev.  Stats.  §§  4952  and  4966.  *  5  &  6  Vict.  c.  45,  §  20.  See  also  45 
The  owner  of  the  copyright  may  recover  &  46  Vict.  c.  40,  and  51  &  52  Vict.  c.  17. 
as  damages  for  the  violation  of  his  right  ^  See  ex  parte  Hutchins,  L.  E.  4 
not  less  than  $100  for  the  first  perform-  Q.  B.  D.  483. 

ance,    and   not  less  than  §50   for   every         ^  Rnssell  v.  Smith,  15  Sim.  181. 
subsequent  performance.  ^  Stephens   v.   Cady,   14    How.    U.    S. 

2  3  &  4  Wm.  IV.  c.  15,  and  5  &  6  Vict.  528  ;  see  also  Stevens  v.  Gladding,  17  Id. 
c.  45,  §  20.  447. 

3  Murray  v.  Elliston,  5  B.  &  Aid.  657.  «  F.  S.  Rev.  Stats.  §  4952. 

(a)  See  ch.  565,  Laws  of  1891,  U.  S.  Stat,  to  which,  by  the  terms  thereof,  the  United 

L  §  1106,  amending        4952,4954,4956,  States  may  at  its  pleasure  become  a  party. 
4958,  4959,   4963,  4964,   4965,  and  4987,  The  existence  of  either  condition  is  to 

and  repealing  §  4971  of  the  Revised  Statutes  be  determined   by   the   President   of  the 

of  the  United  States.     By  this  enactment  United  States  by  proclamation  made  from 

the  privileges  of  copyright  are  extended  to  time  to  time. 

citizens  and  subjects  of  any  foreign  state  The  act  also  provides  that  in  the  case 

or  nation  when  such  foreign  state  or  nation  of  a  book,  photograph,  chromo,  or  litho- 

perraits  to  citizens  of  the  United  States  the  graph  the  two  copies  required  bylaw  to  be 

benefit  of  copyright  on  substantially  the  delivered  or  deposited  shall  be  printed  from 

same  basis  as  its  own  citizens,   or  when  type  set  within  the  limits  of  the  United 

.such  foreign  state  or  nation  is  a  party  to  an  States,  or  from  plates  made  therefrom,  or 

international    agreement    which   provides  from  negatives,  or  drawings  on  stone  made 

forreciprocity  in  the  granting  of  copyright  within  the   limits   of  the  United  States, 


496  THE  LAW  OF  PEKSONAL  PROPEETY. 

(3)  The  subject  of  a  copyright,  and  the  laws  under  which  it  is 
granted.  —  Under  the  United  States  Constitution,  Congress  has 
the  power  to  grant  copyrights  and  patents.^  The  language  is, 
"  Congress  shall  have  power  ...  to  promote  the  progress  of 
science  and  useful  arts,  by  securing  for  limited  times  to  authors 
and  inventors  the  exclusive  right  to  their  respective  writings  and 
discoveries."  There  is  no  doubt  but  that  the  whole  power  over 
this  subject  is  vested  in  Congress  exclusive  of  the  States,  both 
from  the  terms  employed  and  the  nature  of  the  grant,  and  it  has 
been  so  decided.  In  other  words,  there  is  an  implied  prohibition 
of  action  by  the  States  in  respect  to  a  subject  which  would  other- 
wise be  vested  in  them. 

The  subject  of  coi)yrights  had  been  before  the  English  courts 
before  the  United  States  Constitution  was  adopted.  The  consti- 
tutional provision  was,  no  doubt,  adopted  in  view  of  the  legisla- 
tion then  existing  in  England.  It  will  be  pertinent  to  cite  the 
English  decisions  upon  the  subject  of  copyrights,  as  illustrative 
of  the  cases  embraced  under  American  law. 

The  subjects  embraced  in  the  United  States  copyright  law  are, 
any  book,  map,  chart,  dramatic  or  musical  composition,  engrav- 
ing, cut,  print,  or  photograph  or  negative  thereof,  or  any  painting, 
drawing,  chromo,  statue,  statuary,  and  models  or  designs  intended 
to  be  perfected  as  works  of  the  fine  arts.^ 

The  protection  given  by  law  is  intended  for  a  work  already 
composed  and  not  yet  published.  There  can,  accordingly,  be  no 
copyright  in  a  prospective  and  uncomposed  series  of  numbers  of 
a  newspaper,  though  the  right  may  attach  on  each  successive 
publication.^ 

The  word  "  book  "  in  the  statute  is  of  great  consequence,  and 
admits  of  much  decision  as  to  its  true  interpretation.  Under  the 
terms  of  the  law  there  must  be  both  authorship  and  a  book.  The 
word  "  book  "  has  a  wide  meaning  in  English  decisions.  It  is 
much  broader  in  its  signification  than  in  ordinary  cases,  and  em- 
braces an  article  in  a  magazine,  a  portion  of  a  serial  story,  as 
well  as  the  whole  ;  *  an  article  in  an  encyclopaedia ;  corrections 

1  Art.  I.  §  8,  cl.  8.  8  Piatt  v.  Walter,  17  L.  T.  N.  s.  157. 

2  U.  S.  Rev.  Stats.  §  4952.  *  Low  v.  Ward,  L.  R.  6  Eq.  415. 


or  from  transfers  made  therefrom.    During  made   within    the   limits    of  the   United 

the  existence  of  such  copyright  the  impor-  States,    is   prohibited,    except    in   certain 

tation  into  the  United  States  of  any  hook,  specified  cases. 

chromo,  lithograph,  or  photograph  so  copy-  For  English  legislation  upon  the  sub- 
righted,  or  any  edition  or  editions  thereof,  ject  of  "International  copyright,"  see  7  & 
or  any  plates  of  the  same  not  made  from  8  Vict.  c.  12  ;  15  &  16  Vict.  c.  12  ;  38 
type  set,  negatives,  or  drawings  on  stone  &  39  Vict.  c.  12  ;  and  49  &  50  Vict.  c.  33. 


TITLE    BY   OFJGINAL    ACQUISITION.  497 

and  additions  to  the  work  of  another  ;  ^  an  East  India  calendar  or 
directory  ;  ^  a  translation  ;  ^  an  illustrated  catalogue ;  ^  and  has 
even  been  extended  to  an  advertising  catalogue.^  (a) 

Similar  results  have  been  reached  in  this  country.  It  is  held 
tliat  a  "  book "  is  not  necessarily  a  volume  made  up  of  many 
sheets  bound  together ;  it  may  be  printed  only  on  one  sheet. 
The  test  is  not  the  size,  form,  or  shape,  but  the  subject-matter.^ 
Under  this  rule  there  may  be  a  copyright  of  an  "  abstract  of 
title  "  to  land  ;"  also  of  the  plan  of  a  book  as  connected  with  the 
arrangement  and  combination  of  the  materials,  though  the  ma- 
terials may  be  common  to  other  writers.^  There  may  be  a  copy- 
right in  the  head-notes  prepared  by  a  law  reporter,^  (b)  but  not  where 
the  judges  themselves  prepare  them.^'^  (c)  A  copyright  may  be 
taken  for  additions  to  a  work  already  copyrighted,  without  giving 
notice  of  the  existing  copyright.^^  There  may  be  a  copyright  in  a 
compilation  from  original  sources  ;  and  if  two  or  more  persons 
make  distinct  compilations  in  this  manner,  eacli  may  have  a  copy- 
right ;  ^2  it  may  also  be  had  for  a  fair  abridgment.^^ 

There  can,  however,  be  no  copyright  in  a  "  general  subject,"  — 
as,  for  example,  in  a  chart  or  map  as  a  general  subject ;  but  only 
in  a  particular  person's  mode  of  treating  the  subject.  Any  other 
person  may  make  a  map  from  the  original  sources.^^  No  copy- 
right can  be  acquired  in  a  label  for  merchandise,^^  (c?)  nor  in  a  mere 
adaptation  of  a  musical  composition  copyrighted  by  another,  even 
though  a  new  name  be  given  to  it ;  ^^  (e)  nor  in  a  mere  newspaper 

1  Cary  v.  Longman,  1  East,  358.  8  Greene  v.  Bisliip,  1  Cliff.  186  ;  Gray 

2  Mathevvson  v.  Stockdale,  12  Ves.  270.  v.  Russell,  1  Story,  11  ;  Emerson  v.  Davies, 

3  Wyatt  V.  Barnard,  3  V.  &  B.  77.  3  Id.  7fi8. 

4  Maple  &  Co.  V.  Junior  A.  &  jST.  Stores,  9  Myers  1),  Callaghan,  10  Biss.  139; 
L.  R.  21   Ch.   D.  369.      This  case  over-  s.  c.  20  Fed.  K.  441. 

ruled  an  earlier  case  holding  that  there  is  i»  Chase  v.  Sanborn,  4  Cliff.  306. 

no  copyright  in  a  descriptive  catalogue.  "  Lawrence  r.  Dana,  4  Cliff.  1. 

Cobhett  V.  Woodward,  L.  R.  14  E.i.  407.  12  Bullinger  v.  Mackey,  15  Blatch.  550. 

5  Grace  v.  Newman,  L.  R.  19  Eq.  623.  i^  Folsom  v.  Marsh,  2  Story,  100. 

6  Clayton  v.  Stone,    2   Paine,  Cir.  Ct.  "  Blunt  v.  Patten,  2  Paine,  397. 

882  ;  Drury  v.  Ewing,  1  Bond.  540,  —  case         i^  Coffeen  v.  Bruuton,  4  McLean,  516. 
of  diagrams  on  one  sheet.  is  Jollie  v.  Jaques,  1  Blatch.  618. 

■^  Banker  v.  Caldwell,  3  Minn.  94. 

(n)  The  headings  in  a  trades  directory  Palmer,  6  Blatch.  256  ;  Daly  v.  Webster, 

are  the  subject  of   copyright  under   5  &  56  Fed.  R.  483.     A  stage  dance,  consist- 

6  Vict.   c.   45,   though  the  body  of  the  ing  of  a  series  of  graceful  movements,  com- 

work  consist  of  advertisements.     Lamb  v.  bined  with  an  attractive  arrangement  of 

Evans  [1892],  3  Ch.  462.  drapery,  lights,  and  shadows,  but  which 

(b)  Callaghan  u.  Myers,  128  U.  S.  617.  tells   no   story,  represents    no    particular 

(0)  Banks  v.  Manchester,  128  U.  S.244.  thought  or  emotion,  and  portra3-s  no  char- 

(d)  Higgins  v.  Keuffel,  140  U.  S.  428.  acter,    is   not  a  "dramatic  composition" 

(e)  A  written  play  consisting  of  direc-  within  the  meaning  of  the  copyright  act. 
tions  for  its  representation  in  pantomime  Fuller  v.  Bemis,  50  Fed,  R,  926. 

is  a  "dramatic    composition,"   Daly   v. 

32 


498  THE  LAW  OF  PERSONAL  PEOPERTY. 

or  price-current.^  Nor  is  the  method  of  advertising  the  subject 
of  copyright ;  ^  nor  a  title  to  a  book.^  At  all  events,  there  is  no 
copyriglit  in  a  title  which  seeks  to  appropriate  the  virtues,  such 
as  "  Charity,"  "  Faith,"  and  the  like.* 

The  correct  view  seems  to  be  that  the  ground  on  which  a  title 
to  a  book  can  be  protected  by  the  courts  is,  that  it  may  aid  the 
owner  in  making  sales  and  consequent  profits,  so  that  the  right  is 
analogous  to  that  of  a  trade-mark.  It  is  settled  in  the  English 
courts  that  if  the  owner  of  a  publication  claims  an  injunction  to 
restrain  the  issue  of  another  publication  of  a  similar  name,  he 
must  show  not  only  that  the  assumption  of  the  name  by  the 
defendant  is  calculated  to  deceive  the  public,  but  also  that  there 
is  a  probability  of  the  plaintiff  being  injured  by  such  deception.^ 
Another  form  of  statement  is,  that  the  claim  to  the  title  of  the 
paper  depends  upon  user  and  reputation.  On  this  principle  an 
injunction  was  refused  where  the  plaintiff's  paper  had  only  been 
published  for  three  days,  with  a  very  small  sale.^ 

Another  inquiry  now  to  be  taken  up  is  the  meaning  of  the  word 
"  author."  It  is  the  author  or  proprietor  that  is  to  have  the 
copyright.  Some  light  is  shed  upon  the  meaning  of  this  word  by 
the  observation  that  the  word  is  found  in  the  Constitution  as  well 
as  in  the  laws  of  Congress.    In  the  Constitution  it  is  coupled  with 

1  Clayton  ).'.  Stone,  2  Paine,  C.  Ct.  382.  pears  to  be  settled  by  these  decisions  that 

2  Ehvet  V.  Pierce,  18  Blatch.  302.  if  one   has   published  a  book  and   copy- 

3  Osgood  V.  Allen,  1  Holmes,  185.  righted  it  under  a  name,  and  another  pub- 
*  Isaacs  V.   Daly,  39  N.  Y.  Super.  Ct.  lishes  another  work  under  the  same  name, 

511.    The  (juestion  whether  there  can  be  a  selling  it  as  though  it  were  the  look  first 

copyright  in  the    "title"  of  a  book,  is  a  copyrighted,  a  fraud  is  committed  by  the 

vexed  one.     It  is  held  in  Shook  v.  Wood,  false  representation,  without  reference  to 

10  Phil.   (Pa.)  373,  that  a  party  will,  in  copyright.     Mack  v.  Petter,  L.  R.  14  Eq. 

case  of  an  intention  to  deceive,  be  enjoined  431,  seems  to   rest  on   this   principle,  as 

from  using  the  title  of  a  dramatic  conipo-  well  as  Kelly  v.  Byles,  L.    R.  13  Ch.  D. 

sition  which  has  been  copyrighted,  even  682,  692. 

though  the  body  of  the  play  intended  to         There  is  as  yet  no  authoritative  decision 

bo  presented  under  th.at  title  may  be  en-  that  a   title   considered  in  and  by  itself, 

tirely  different  from  the  copyrighted  play,  and  without  any  fraud,  can  be  copyrighted. 

In  England  the  question  is  not  settled.    In  Certainly  a  hackneyed  phrase  like  "  Splen- 

Dicks^;.  Yates,  L.  R.  18  Ch.  D.  76  (1881),  did  Misery"  cannot  be.     Dicks  v.  Yates, 

it  was  said  by  James,  L.  J.,  and  Jessel,  L.   R.  18  Ch.  D.  76.     On  the  whole,  it 

M.  R.,   that  there  cannot,   in  general,  be  would  seem  that  those  judges  who  appear 

any  copyright  in  the   title  or   name  of  a  to  suppose  that  the  title  of  a  book  is  in 

book.     The  case  did  not,  however,  call  for  and  by  itself  a  subject  of  copyright,  have 

a  decision  of  the  point.     It  was   said  in  been  led  away  by  the  false  analogy  of  a 

the  same  case  that  some  decisions,  appar-  "  trade-mark,"  to  which  a  copyright  bears 

ently  holding  that  there  could  be  a  copy-  no  real  resemblance. 

right    in    a    title,    were    really    cases   of  ^  Borthwick  v.  Evening  Post,  L.  R.  37 

common-law    fraud,    such    as    Metzler  v.  Ch.  D.  449. 

Wood,  L.  R.   8  Ch.  D.  606,  and  Weldon  ^  Licensed  Victuallers  Newspaper  Co. 

V.  Dicks,  L.   R.  10  Ch.   D.  247.     It  ap-  v.  Bingham,  L.  R.  38  Ch.  D.  139. 


TITLE   BY   0PJ3INAL   ACQUISITION.  499 

a  reason  for  the  grant  of  power  to  Congress.  The  object  of  giv- 
ing an  exclusive  right  to  authors  and  inventors  is  to  "promote  the 
progress  of  science  and  useful  arts."  It  is  not  every  one  who 
composes  that  is  an  author  in  the  sense  of  the  Constitution.  His 
recognition  as  such  must  tend  to  "  promote  the  progress  of  science 
and  useful  arts."  A  monopoly  is  granted,  and  there  must  be  good 
reason  for  it.  Tliere  must  be  in  the  right  protected  some  element 
of  public  utility,  and  the  party  claiming  it  must  be  an  author. 

In  order  to  be  an  author  there  must,  in  general,  be  originality. 
Originality,  not  skill  or  merit,  is  the  test  whether  a  work  is  the 
subject  of  a  copyright.^  Thus,  a  person  cannot,  in  general,  obtain 
a  copyright  for  a  method  of  communicating  information  by  ques- 
tion and  answer,  that  method  being  of  unknown  antiquity.  This 
is  particularly  the  case  where  the  questions  are  in  the  simplest 
possible  forms.2  There  is  a  certain  class  of  useful  books,  —  e.  g.^ 
dictionaries,  —  in  which  absolute  originality  is  excluded  from  the 
nature  of  the  case,  which  are  still,  by  way  of  exception,  the  subject 
of  copyright.^ 

It  would  seem  that  a  mere  work  of  industry,  with  a  plan  readily 
occurring  to  a  person  of  ordinary  intelligence,  could  not  properly 
be  regarded  as  a  case  of  authorship  under  the  United  States  Con- 
stitution.* There  should  be  some  intellectual  skill.  Still,  the 
cases  go  very  far  in  England  and  in  this  country.  The  question, 
however,  is  not  the  same  there  as  here,  as  there  is  no  constitu- 
tional direction  or  intimation  in  English  law  that  the  object  of 
copyright  is  to  promote  "  the  progress  of  science  and  useful  arts." 

There  is  as  yet  no  authoritative  exposition  of  this  subject  by  the 
Supreme  Court  of  the  United  States,  and  the  inquiry  is  fairly 
relevant  whether  the  full  scope  of  the  Constitution  has  been 
sufficiently  attended  to  in  the  decisions  in  the  inferior  courts. 

(4)  The  mode  of  acquiring  a  copyright.  —  As  a  copyright  is  the 
creature  of  statute,  it  is  necessary  for  the  claimant  to  comply  with 
the  statutory  provisions  made  in  his  behalf ;  otherwise,  he  will 
have  no  right.  He  will,  by  an  assumed  abandonment,  have  lost  his 
property  in  his  work  existing  before  publication,  and  have  acquired 
nothing  under  the  statute. 

This  rule  is  strictly  enforced  in  England  under  the  statute 
requiring  "  registration."  ^  While  compliance  with  that  law 
may  not  be  necessary  to  the  legal  existence  of  the  copyright,  it  is 
requisite  to  perfect  the  right  to  sue.^     It  is  accordingly  necessary 

i  Per   LiNDLEY,  L.   J.,  L.  R.  21  Ch.  «  See  Clayton  v.   Stone,    2   Taine,  C. 

D.  380.  Ct.  382. 

2  Jarrold  v.  Honlston,  3  Kay  &  J.  708.  ^  5  &.  Q  Vict.  c.  45. 

3  Spiers  v.  Brown,  6  W.  R.  352.  6  Goubaua v. Wallace, 36 L.  T.N.  s.  704. 


50Q  THE  LAW  OF  PEESONAL  PROPERTY. 

to  enter  accurately  the  very  day  of  first  publication ,i  the  name 
and  place  of  abode  of  the  publisher,^  and  other  details  prescribed 
in  the  statute.  There  is  no  copyright  unless  the  book  has  been 
actually  published  at  the  date  of  registration.^  A  system  prevails 
also  by  which  false  entries  may  be  expunged  by  order  of  one  of 
the  Superior  Courts  on  the  application  of  a  person  aggrieved.* 
The  acts  to  be  done  in  this  country  are  prescribed  in  the  Revised 
Statutes  of  the  United  States.^ 

The  primary  step  to  be  taken  is  before  pubhcation  to  deliver  at 
the  office  of  the  Librarian  of  Congress,  or  deposit  in  the  mail 
properly  addressed  to  him,  a  printed  copy  of  the  title  of  the  book 
or  other  article  to  be  copyrighted,  or  a  description  of  the  painting, 
drawing,  statue,  etc.,  or  a  model  or  design  for  a  work  of  the  fine 
arts,  and  within  ten  days  after  publication  to  deliver  or  deposit 
in  the  mail  as  before,  two  copies  of  the  book  or  other  article,  or  a 
photograph  of  the  painting,  drawing,  statue,  model,  etc.^  The 
copies  of  the  books  are  to  be  complete  printed  copies  of  the  best 
edition.  There  must  also  be  a  copy  of  every  subsequent  edition 
wherein  any  substantial  changes  shall  be  made.^  There  is  a 
penalty  of  125  for  failure  to  deliver  or  deposit  copies  or  photo- 
graphs as  prescribed  in  the  statute. 

It  is  also  incumbent  upon  the  owner  of  the  copyright  to  insert 
on  the  title-page  or  next  succeeding  page  of  each  book  published, 
notice  of  the  copyright,  — e.^.,  "  Copyright,  18—,  by  A.  B.,"  ^(a) 
and  in  the  case  of  maps,  drawings,  statues,  etc.,  to  inscribe  on 
the  front  or  face  thereof  like  words.  Unless  this  provision  is 
complied  with,  no  action  can  be  brought  for  infringement.^ 

In  carrying  out  these  directions,  it  has  been  held  to  be  enough 
to  print  the  surname  and  only  the  initial  of  the  given  name  of  the 
proprietor.!*'  The  delivery  or  deposit  of  copies  required  by  §  4959 
may  be  made  after  printing  and  before  formal  publication. ii  The 
rules  should  receive  a  liberal  construction.^^    ^  substantial  failure 

1  Mathieson  v.   Harrod,    L.   E.   7  Eq.  M  4959. 

270.  8  Act  of  June  18,  1874,  18  St.  L.  78. 

2  Low  V.  Eoiitledge,  10  Jur.  n.  s.  922.      See  also  U.  S.  Rev.  Stats.  §  4962. 

3  Henderson  v.  Maxwell,  L.  R.  5  Ch.  D.  ^  §  4962. 

892.  ^°  Burrow,  &c.  Litli.  Co.  v.  Sarony,  111 

*  Ex  parte  Davidson,  2  E.  &  B.   577;  U.  S.  .53,  —case  of  photographs, 

see  also  18  C.  B.  297  ;  Graves'  Case,  L.  R.  "  Chapman  v.  Ferry,  18  Fed.  R.  539. 

4  Q.  B.  715.  '^'^  Myers   v.   Callaghan,  10     Biss.    139. 

5  §§  4956,  4959,  and  4962.  See  Donnelley  v.  Ivers,  20  Blatch.  381. 

6  §  4956. 

(ffi)  It  would  seem  to  be  sufficient  if  617  ;  Falk  v.  Schumacher,  48  Fed.  R. 
this  statute  were  substantially  complied  222;  Hefel  t).  Whitely  Land  Co.,  54  Fed. 
with.      Callaghan  v.    Myers,   128  U.    S.     R.  179. 


TITLE    BY    OKIGINAL    ACQUISITION.  501 

to  comply  with  the  statute  is  fatal  —  e.  (/.,  a  failure  to  deliver  the 
two  copies  within  ten  days  after  publication.^ 

(5)  Te7'm  of  copyright,  and  renewal.  —  Tlie  author  or  proprietor, 
on  complying  with  the  law,  is  entitled  to  a  copyright  for  the  term 
of  twenty-eight  years.  The  copyright  may,  under  special  circum- 
stances, be  renewed  for  the  further  term  of  fourteen  years.  If,  at 
the  expiration  of  the  first  named  period,  the  author  be  living,  the 
copyright  belongs  to  him  ;  if  he  be  dead,  it  belongs  to  his  widow  or 
children.^  The  language  of  this  section  docs  not  extend  to  a  pro- 
prietor as  distinguished  from  an  author.  The  title  of  the  work 
must  be  recorded  a  second  time,  and  the  other  requirements 
applicable  to  the  original  right,  complied  with.  This  must  be 
done  within  six  months  before  the  expiration  of  the  first  term. 
Within  two  months  from  the  date  of  the  renewal,  a  copy  of  the 
"  record  "  must  be  published  for  four  weeks  in  one  or  more  news- 
papers printed  in  the  United  States. 

(6)  Assignment.  —  This  may  be  considered  under  two  aspects  : 
1.  Assignment  before  copyright  of  the  author's  proprietary  inter- 
est.    2.  Assignment  of  the  copyright  itself. 

1.  A  manuscript,  unpublished,  being  an  item  of  property,  is  in 
its  own  nature  susceptible  of  transfer  or  assignment.  Such  a  trans- 
fer may  be  total  or  partial,  or  may  create  a  lien  in  the  assignee's 
favor.  So  it  may  be  to  two  or  more  persons  to  hold  jointly  or  in 
common.  This  proprietary  right  is  a  sufficient  basis  for  a  copy- 
right. So  one  may  hold  it  in  trust  for  another  who  is  a  benefi- 
ciary under  him. 

Contracts  between  authors  and  others,  particularly  publishers, 
assume  a  great  variety  of  forms,  and  many  questions  arise  under 
them.  An  agreement  with  a  publisher  to  publish  an  edition  and 
to  pay  a  royalty  on  copies  sold,  does  not  imply  that  he  is  to  have 
the  publication  of  a  later  edition.^  There  is  a  distinction  between 
an  assignment  of  the  author's  right  and  a  license  to  publish.  In 
the  latter  case  no  title  passes  to  the  licensee,"*  An  author  may  by 
apt  words  so  bind  himself  as  to  a  particular  edition  that  he  can 
print  no  more  on  his  own  account  until  that  edition  is  exhausted. 
This  would  amount  to  a  partial  assignment.^  Agreements  between 
authors,  on  the  one  hand,  to  prepare  a  work,  and  to  make  addi- 
tions and  corrections  for  later  editions  ;  and  of  publishers,  on  the 
other  hand,  to  print,  reprint,  and  publish,  and  to  divide  the  profits, 

1  Merrell  v.  Tice,  104  U.  S,  557  ;  Park-  2  u.  S.  Rev.  Stats.  §  4954. 

inson  v.   Laselle,  3  Sawy.  330.      Consult  ^  Warne  v.  Routledge,  L.  R.  18  Eq.  497. 

also  Wheaton  v.  Peters,  8  Pet.  591  ;  Ewer  *  Reade  v.  Bentley,  3  Kay  &  J.  271. 

V.  Coxe,  4  Wash.  487  ;  Jollie  v.  Ja(iues,  1  ^  Sweet  v.  Cater,  11  Sim.  572. 
Blatch.  618  ;  Baker  v.  Taylor,  2  Id.  82. 


502  THE  LAW  OF  PEKSONAL  PROPERTY. 

are  contracts  of  a  personal  nature,  and  not  assignable  by  either 

party  without  the  other's  consent.^  Similar  rules  are  applied  where 
the  contracting  firm  of  publishers  has  been  succeeded  in  its  busi- 
ness by  others.2 

An  out  and  out  purchase  of  a  manuscript  by  a  publisher  has 
been  thought  in  one  case  to  give  the  purchaser  a  right  to  alter  or 
deal  with  it  as  he  may  think  proper.^ 

2,  An  assignment  of  a  copyright,  under  English  and  American 
statutes,  must  be  in  writing.*  It  is  also  said  that  there  cannot  be 
a  partial  assignment  of  a  copyright.^  (a)  There  may  be  an 
agreement  to  assign  which  will  not  be  a  legal  assignment,  but  will 
be  recognized  in  a  court  of  equity.^  Such  an  agreement  will  not 
so  operate  as  necessarily  to  make  a  subsequent  assignment  by  the 
author  inoperative^ 

Under  the  laws  of  the  United  States  an  assignment  may  be 
made  by  any  instrument  in  writing,  and  recorded  in  the  office  of 
the  Librarian  of  Congress  within  sixty  days  after  its  execution ; 
if  not  recorded,  it  will  be  void  as  against  a  subsequent  purchaser 
or  mortgagee  for  a  valuable  consideration,  without  notice.^ 

(7)  Lifringement. — The  first  question  that  may  arise  as  to 
an  infringement  is  as  to  the  title.  It  has  already  been  stated  that 
there  is  much  doubt  whether  a  copyright  extends  to  the  title.^ 
Still,  if  the  title  is  embraced  within  the  protection  of  the  law, 
there  must  be,  in  order  to  constitute  an  infringement,  a  similarity, 
or  colorable  imitation  of  the  title.  Accordingly,  where  the  title 
of  the  copyright  was  "  Why  and  Because,"  and  the  title  com- 
plained of  was  "  The  Reason  Why,"  it  was  held  that  there  was 
no  infringement.^*'  On  the  other  hand,  the  title  "  The  Birthday 
Scripture  Text-Book,"  was  thought  to  be  infringed  upon  by  the 
expression,  "  The  Children's  Birthday  Text-Book."  ^^  Moreover, 
if  the  title  contained  expressions  in  common  use, —  e.  g.^  "post 
office,"  —  these  could  not  be  copyrighted.^^     It  may  be  added  that 

1  Stevens  v.  Benning,  6  De  G.  M.  &  G.  ^  Weldon  v.  Dicks,  L.  R.  10  Ch.  D. 
223  ;  s.  c.  1  Kay  &  J.  168.  247  ;  Dicks  v.  Yates,  L.  R.  18  Ch.  D.  76. 

2  Hole  V.  Bradbury,  L.  R.  12  Ch.  D.  lO  Jarrold  v.  Houlston,  8  Jur.  N.  s.  1051, 
886.  "  Mack  v.  Fetter,   L.   R.  14  Eq.   431. 

3  Cox  V.  Cox,  11  Hare,  118.  See  also  Metzler  v.  Wood,  L.  R.  8  Ch.  D. 
*  Leyland  v.  Stewart,  L.  R.  4  Ch.  D.     606. 

419  ;  U.  S.  Rev.  Stats.  §  4955.  i^  Kelly  v.  Byles,  L.  R.  13  Ch.  D.  682. 

5  Jefferys  v.  Boosey,  4  H.  L.  Cas.  815.  The  title  in  this  case  was    "Post  Office 

6  Sims  V.  Marryatt,  17  Q.  B.  281.  Directory."  The  defendants  were  not  re- 
^  Leader  v.  Purday,  7  C.  B.  4.  strained  from  using  these  words  as  part  of 
8  U.  S.  Rev.  Stats.  §  4955.  their  directory. 


(a)  An  undivided   interest  in  a  copy-     Black  v.  Henry  G.  Allen  Co.,  42  Fed.  R. 
right    has    been   held  to   be   assignable.     618  ;  s.  c.  56  Id.  764. 


TITLE    BY    ORIGINAL    ACQUISITION.  503 

the  same  general  defects  would  defeat  a  copyright  in  the  title  as 
in  the  case  of  the  book  itself,  such  as  fraud  in  statement.^  There 
is  nothing  analogous  to  copyright  in  the  name  of  a  newspaper ; 
still,  it  may  be  protected  on  other  grounds,  —  e.  ^.,  trade-mark, 
good-will,  etc.2 

Infringement  as  to  subject-matter  is  the  more  important  ques- 
tion. Generally  speaking,  to  constitute  an  "  infringement "  there 
must  be  a  transcript  of  the  copyrighted  work,  or  a  republication 
of  it  with  only  colorable  variations,  with  no  independent  literary 
hibor.  Infringement  may  exist  without  complete  reproduction  of 
the  copyrighted  work ;  partial  imitation  may  be  actionable.  Ac- 
cordingly, it  may  consist  in  quotation.  It  is  plain  that  a  "  quota- 
tion "  may  be  so  extensive  as  to  constitute  an  infringement.  The 
result  of  the  publication  of  the  quotation  is  to  be  regarded,  and 
the  inquiry  is  to  be  made  whether  its  effect  is  to  injure  or  super- 
sede the  sale  of  the  original  work.^  It  will  not  aid  the  infringer 
to  state  that  the  matter  complained  of  is  quoted.  Such  a  state- 
ment might  relieve  the  writer  from  dishonest  plagiarism,  but  not 
from  legal  liability.^  Fraud  is  not  an  essential  element  in  an 
infringement  case.  The  real  question  is,  has  a  right  of  property 
been  invaded  in  some  material  respect.^ 

Some  special  rules  may  be  stated  as  to  those  writers  who  derive 
their  information  from  special  sources,  such  as  authors  of  encyclo- 
pedias and  the  like.  Any  other  person  may  go  to  the  original 
sources,  though  he  must  not  take  his  material  from  the  copy- 
righted work  itself.^  It  has  even  been  held  that  the  latter  may 
be  resorted  to  for  the  purpose  of  obtaining  references  to  the 
original  sources  of  information.'^ 

Copies  of  a  copyrighted  book  cannot  be  multiplied  by  an  un- 
authorized person,  even  though  not  printed,  and  distributed  gratu- 
itously.^ It  is  immaterial  that  the  copyrighted  book  was  primarily 
intended  as  an  advertisement,  there  being  nothing  in  the  matter 
of  copyrighting  which  makes  it  turn  upon  the  purpose  to  which 
the  book  is  to  be  chiefly  applied.^    However,  it  has  been  held  that 

1  Wright  V.  Tallis,  1  C.  B.  893.  6  y±&  v.   Nicholas,    L.  R.  5  Ch.  App. 

2  Kelly  V.  Hiitton,  L.  R.   3  Ch.  App.     251. 

703.  ■^  Jarrold  v.  Houlstou,  3  Kay  &  J.  708  ; 

3  Bramwell   v.    Halcomb,    3    M.  &  C.  Morris  v.  Wright,  L.  R.  5  Ch.  App.  279. 
737  ;    Scott    v.    Stanford,    L.   R.  3    Eq.  8  Novello  v.  Lndlow,  12  C.  B.  177. 
718.                                                                             ^  Maple  &  Co.  v.  Junior  A.  &  N.  Stores, 

*  Bohn  I'.  Bogus,  10  Jur.  420.  L.  R.  21  Ch.  D.  369.     Compare  Hotten  v. 

5  Clement   v.    Maddick,     1    Giff.  98  ;  Arthur,  1  H.  &  M.  603  ;  Cobbett  v.  Wood- 

Perris  v.    Hexamer,    99  U.  S.  674.     It  is  ward,  L.  R.  14  E(i.  407,  414,  opposed  to  a 

not  material  that  the  author  wrote  gratu-  copyright  in  an  adveitisement,  is  overruled 

itously,  for  the  benefit  of  others.  Lawrence  by  ilaple  &  Co.  v.  Junior  A.  &  N.  Store.s, 

V.  Dana,  4  Clifif.  1.  supra,  p.  379. 


504  THE  LAW  OF  PERSONAL  PROPERTY. 

an  advertising  card,  devised  for  the  purpose  of  displaying  paints 
of  various  colors,  is  not  the  subject  of  copyright  under  the  laws 
of  the  United  States. ^  It  will  be  convenient  to  state  at  this  point 
some  qualifications  to  the  doctrine  of  infringement. 

1.  Some  use  of  prior  works  is  tolerated  in  such  books  as  diction- 
aries, gazetteers,  grammars,  encyclopsedias,  guide-books,  etc.,  if 
the  main  design  and  execution  are  novel  and  improved,  since  the 
materials  of  such  works,  to  a  considerable  extent,  must  be  the 
same.2 

2.  A  fair  abridgment  of  a  work  is  declared  by  the  courts  not 
to  be  an  infringement.  To  constitute  a  fair  abridgment  there 
must  be  real,  substantial  condensation  of  the  materials,  and  not 
merely  a  collection  of  extracts,  constituting  the  chief  value  of  the 
original  work.  The  abridgment  must  have  originality,  or  it 
cannot,  according  to  principle,  be  itself  the  subject  of  copyright, 
though,  without  originality,  it  might  impair  the  value  of  the  book 
to  which  it  is  applied.^ 

3.  A  translation  is  not  an  infringement.  The  case  now  referred 
to  is  that  of  the  translation  of  a  copyrighted  book  put  on  sale  in 
the  same  country  in  which  the  copyright  exists.  This  rule  was 
ai)plied  to  the  sale  in  the  United  States  of  an  unauthorized  trans- 
lation of  Mrs.  Stowe's  novel,  "  Uncle  Tom's  Cabin."  The  theory 
of  this  rule  is,  that  it  is  not  the  same  work  as  the  original,  the 
language  being  different.*  At  the  present  time,  the  effect  of 
this  rule  may  be  avoided  under  our  statutes  by  reserving  the  right 
of  translation.^  Any  one  may  translate  a  book  written  in  a 
foreign  language, —  e.  (jr.,  Latin  or  Greek,  —  and  obtain  a  copy- 
right in  his  translation,  though  another  person  might  translate 
the  same  work  and  have  a  copyright  in  his  translation.^ 

4.  Dramatization  of  a  work  —  for  example,  a  novel  —  is  not  of 
itself  an  infringements  (-^)  This  i-ule  is  not  of  much  importance 
here,  as  the  riglit  to  dramatize  may  be  reserved  by  an  author.^ 

The  remedies  for  an  infrinc/ement  are  either  a  suit  in  equity  for 
an  injunction,  or  an  action  for  penalties. 

1  Ehret  v.  Pierce,  18  Blatch.  302.  Holcomte,  4  McLean,  306.     This  subject 

2  Webb   V.    Powers,    2   Woodb.    &  M.     needs  revision  by  the  courts. 

497^  512.  4  Stowe  v.  Thomas,  2  WalL  Jr.  547. 

»  That  an  abridgment  is  not  in  prin-  5  XJ.  S.  Rev.  Stats.  §  4952. 

ciple    an    infringement    seems   doubtful,  ^  Wyatt  v.  Barnard,  3  Ves.  &  B.  77. 

since  the    rule   permits    the   abridger   to  ''  Eeade  v.  Conquest,   30  L.  J.  (C.  P.) 

make  use  of  the  plan   and   arrangement  209.     See  11  C.  B.   N.  s.  479  ;  Toole  v. 

of  the  principal   work.      The    cases   are,  Young,  L.  R.  9  Q.  B.  523. 
Folsora  V.  Marsh,  2  Story,  100  ;  Story  v.  s  u.  S.  Rev.  Stats.  §  4952. 


(a)  Schlesinger  v.  Bedford,   63   L.   T.  n.  s.  762. 


TITLE   BY   ORIGINAL   ACQUISITION.  505 

Injunctions  in  equity  are  referred  to  in  the  Revised  Statutes. ^ 
The  jurisdiction  is  vested  in  the  circuit  courts,  and  district  courts 
having  the  jurisdiction  of  circuit  courts,  according  to  the  course 
and  principles  of  courts  of  equity.  It  has  been  held  that  an 
injunction  may,  in  some  instances,  be  granted  without  proof  of 
actual  damage.^  Damages,  as  distinguished  from  profits,  cannot 
be  recovered  in  suits  in  equity  for  the  infringement  of  copyright. 
In  this  respect  the  law  of  copyright  differs  from  that  of  patents.^ 

Penalties  and  forfeitures  are  not  enforceable  in  equity,  in  the 
absence  of  legislative  authority.  They  must  be  proceeded  for  as 
penalties ;  and  the  rules  applicable  to  actions  for  penalties  must 
be  followed.*  In  each  of  these  cases  the  claimant  must  show  that 
the  rules  governing  copyright  have  been  substantially  complied 
with.^  Penalties  under  the  copyright  statute  are  quite  severe. 
The  statutes  should  be  consulted.^ 

Section  II.  Title  to  the  Products  of  Invention  and  Discovery.  — 
The  origin  of  the  American  law  of  patents  must  be  sought  in 
English  law.  The  Crown  of  England  as  a  branch  of  the  royal  pre- 
rogative, has  had  from  time  immemorial  the  power  to  grant  to 
individuals  exclusive  rights  in  the  nature  of  monopolies,  under  a 
general  rule  that  the  king  may  exercise  a  control  over  the  trade 
of  the  country.  Such  grants,  as  well  as  grants  of  land,  etc.,  were 
made  by  instruments  termed  "  letters  patent."  They  were  usually 
addressed  to  all  the  king's  subjects,  and  were  under  the  great  seal. 
They  were  public  or  "  open  "  letters,  and  were  thus  distinguished 
from  grants  addressed  to  particular  persons,  which  were  sealed  on 
the  outside,  and  called  "  close  letters." 

The  Crown  exercised  this  power  to  a  very  prejudicial  extent  in 
creating  monopolies.  In  the  great  case  of  Monopolies '  such  an 
exercise  was  judicially  declared  to  be  illegal,  though  it  was  not 
denied  that  the  Crown  had  power  to  grant,  as  a  recompense  for 
a  new  invention,  the  exclusive  right  to  trade  on  it  for  a  reasonable 
period.  The  exact  time  that  would  be  regarded  as  reasonable  was 
not  fixed  by  the  decision.  It  led  to  the  enactment  of  the  statute 
of  the  twenty-first  year  of  King  James  I.  (1623)  c.  3,  declaring 

1  §  4970.  Coke's   Eep.  846  ;    Noy's   E.    173,   under 

2  Reed  v.  Holliday,  19  Fed.  R.  32.5.  name  of  Darcy  v.  Allin.    In  Noy's  Report, 

3  Chapman  v.  Ferry,  8  Sawy.  C.  Ct.  the  argument  of  counsel  against  tlie  nio- 
191.  nopoly  is  given  at  much  length.     Though 

4  1,1.  quaint,  it  is  manly  and  sound.     The  par- 

5  Chicago  Music  Co.  v.  J.  "VV.  Butler  tieular  case  was  that  of  an  exclusive  grant 
Co.,  19  Fed.  R.  758.  to  import,  manufacture,  and  sell  playitig- 

6  U.  S.  Rev.  Stats.  §§  4964-4966.  cards.     .See  Caldwell  v.  Van  Vlissengen,  9 
''  In    the   44th    year  of    Elizabeth,  11     Hare,  415,  427. 


506  THE  LAW  OF  PERSONAL  PKOPEKTY. 

monopolies  in  general  to  be  void ;  but  at  the  same  time  except- 
ing "  letters  patent  and  grants  of  privilege  for  the  term  of  four- 
teen years,  or  under,  hereafter  to  be  made  of  the  sale,  working,  or 
making  of  any  manner  of  new  manufactures  within  this  realm,  to 
the  true  and  first  inventor  and  inventors  of  such  manufactures 
which  others  at  the  time  of  making  such  letters  patent  and 
grants  shall  not  use,"  etc.  (§  6.)  It  is  further  declared  "  that 
the  same  shall  be  of  such  force  as  they  should  be  if  this  act  had 
never  been  made,  and  of  none  other." 

It  is  well  settled  that  this  statute  did  not  create,  but  controlled 
the  power  of  the  Crown  in  the  granting  of  patents,^  It  has  been 
distinctly  held  that  patentees  have  always  derived,  and  still  derive, 
their  rights,  not  from  the  statute,  but  from  the  grant  of  the  Crown.^ 

In  this  country  the  power  to  grant  patents  is  vested  by  the 
United  States  Constitution  exclusively  in  Congress.  The  right  is 
accordingly  statutory  as  contrasted  with  that  in  England,  which 
originates  with  the  common  law,  but  limited  and  confined  by 
statutory  restraints.  The  principles  of  law  governing  the  general 
subject  in  the  two  countries  are  substantially  the  same. 

A  patent  may  be  defined  to  be  an  exclusive  temporary  privilege, 
obtained  from  governmental  authority  granted  to  an  inventor  or 
discoverer,  or  proprietor  of  an  invention  or  discovery,  for  the 
manufacture,  sale,  and  use  of  the  article  or  thing  to  which  the 
patent  refers. 

The  thing  patented  may  be  either  a  machine  or  a  process.  It  is 
not  easy  to  draw  the  line  between  the  two.  A  leading  distinc- 
tion is,  that  in  a  7nac7iine,  use  is  made  of  the  mechanical  powers  ; 

1  Coke's  Third  Institute,  Case  85,  patent  was  granted  to  Mr.  Matthey,  a 
p.   181.  cutler,  at  Fleetbridge,  in  the  beginning  of 

2  Caldwell  v.  Van  Vlissengen,  9  Hare,  this  queen's  [Elizabeth]  time,  tvJiich  I  have 
415,  427.  ^icre  in  court  to  show,  by  which  patent  was 

There  is  strong  reason  to  believe  that  the  granted  unto  him  the  sole  making  of  knives 

English  courts  would  not,  even  before  this  with  bone  hafts  and  plates  of  lattin,  be- 

statute,  have  upheld  any  grant  of  a  patent  cause,  as  the  patent  suggested,  he  brought 

for  an  invention  which  had  already  gone  the  first  use  thereof  from  beyond  seas,  yet 

into  public  use.     In  other  words,  this  car-  nevertheless  when  the  wardens  of  the  com- 

dinal  rule  of  patent  law  was  not  derived  pany  of  cutlers  did  show  before  some  of 

from  the  Statute  of  James,  but  from  judi-  the  counsel  and  some  learned  in  the  law 

cial  decision,  since  this  would  be  a  monop-  that  thej'  did  use  to  make  knives  before, 

oly  of  the  class  justly   termed  "odious."  though  not  with  such  hafts,  that  such  a 

The  counsel  in  Darcy  v.  Allin,  Noy's  Re-  light  difference  of  invention  should  be  no 

ports,  pp.  182,  183,  cites  three  cases  (one  in  cause  to  restrain  them,    whereupon   he 

the  9th  of  Queen  Elizabeth,  and  all  before  could  never  have  benefit  of  this  patent, 

the  Statute  of  James),  where  the  patent  was  although  he  labored  very  greatly  therein." 

judicially  declared  void,  because  the  inven-  It  would  seem,  from  the  use  of  the  word 

tion  had  already  gone  into  public  use  be-  "restrain  "  in  this  passage,  that  an  injunc- 

fore  the  issuing  of  the  patent.     One  of  his  tion  was  resorted  to  at  that  early  day. 
cases  is  worth  transcribing.    "  A  monopoly 


TITLE   BY   OiaCINAL   ACQUISITION.  507 

in  a  process,  resort  is  had  to  chemical  action.  Important  rules 
grow  out  of  this  distinction,  which  will  be  noticed  more  fully 
hereafter. 

A  patent  is  in  the  nature  of  a  monopoly,  and  in  that  asjject 
antagonistic  to  the  interest  of  the  public.  It  is  to  be  tolerated  only 
on  the  ground  that  it  is  legal,  and  the  legislation  authorizing  it  is 
only  sound  when  under  the  circumstances  the  evils  of  a  monopoly 
are  as  a  rule  overborne  by  the  advantages  to  be  derived  from  it, 
"  An  illegal  monopoly  is  a  public  grievance,"  and  it  is  for  the  interest 
of  trade  that  the  court  should,  on  due  application,  so  declare  it.^ 

The  subject  of  patents  will  be  considered  according  to  the  fol- 
lowing arrangement  of  topics.  I.  To  whom  the  patent  should 
be  granted.  II.  The  subject-matter  of  a  patent.  III.  Proceed- 
ings in  the  Patent  Office,  to  obtain  a  patent,  to  correct  defects, 
to  secure  a  reissue,  and  to  determine  questions  of  interference. 
IV.  Substantive  rights  acquired  under  a  patent :  (1)  The  patent 
itself;  (2)  Derivative,  or  subordinate  substantive  rights,  includ- 
ing renewal  or  extension,  assignments,  licenses,  sale  of  single 
machines,  etc. ;  (3)  Infringement.  V.  Remedies :  (1)  When  the 
patent  is  attacked  :  1.  By  the  United  States  ;  2.  By  an  individual ; 
(2)  Remedies  by  the  patentee  :  1.  At  law  ;  2.  In  equity. 

I.  To  whom  the  patent  should  he  granted. —  The  statute  of 
21  Jac.  I.,  c.  3,  §  6,  confines  the  patent  to  the  "true  and  first 
inventor."  The  law  of  this  country  confines  the  grant  to  an 
inventor  or  discoverer,  the  invention  or  discovery  not  being  known 
or  used  by  others  in  this  country,  and  not  patented  or  described 
in  any  printed  publication  in  this  or  any  foreign  country,  before 
his  invention  or  disco  very  .^ 

The  leading  point  of  inquiry  then  is,  who  is  an  "  inventor  or 
discoverer"  within  the  meaning  of  the  statute.  There  may  be 
two  competing  claimants  for  the  patent,  and  the  one  who  is  the 
true  and  first  inventor  must  be  ascertained.  The  law  protects 
him  who  was  the  first  inventor,  although  he  was  not  the  first  to 
adapt  his  invention  to  practical  use,  by  permitting  him  to  file  a 
caveat.  Independent  of  this  caveat,  the  rule  would  have  been  that 
the  person  who  first  adapted  his  invention  to  practical  use  would 
be  entitled  to  a  patent. ^  Until  an  invention  is  so  perfected  and 
adapted  to  use,  it  is  not  patentable*  Accordingly,  whoever  finally 
perfects  a  machine,  and  renders  it  capable  of  useful  operation,  is 
entitled  to  a  patent,  though  others  may  have  had  the  idea,  and  made 

1  The  Queen  v.  Prosser,  11  Beav.  306,  3  Phelps  v.  Brown,  4  Blatch.  362. 
317.    A  case  oi  scire  facias  to  repeal  letters  *  Eeed  r.  Cutter,  1  Story,  590  ;  Lowell 
patent.  v.  Lewis,  1  Mas.  182,  187. 

2  U.  S.  Kev.  Stats.  §  4886. 


508  THE   LAW   OF   PEIISONAL    PKOPERTY. 

experiments  towards  putting  it  in  practice.^  It  will  not  be  enough 
to  take  away  the  claim  of  first  invention  to  show  that  suggestions 
aided  the  claimant.  It  must  appear  that  they  would  furnish  all 
the  information  necessary  to  accomplish  the  result.^  Nor  will 
it  invalidate  a  patent  to  show  that  every  part  of  the  machine 
described  in  it  is  not  the  original  invention  of  the  patentee ;  that 
is  only  necessary  as  to  the  parts  claimed  as  his  own  invention.^ 
But  the  employment  of  mechanical  skill  to  construct  a  machine 
in  accordance  with  ideas  furnished  by  another,  gives  no  right  to 
the  invention.*  The  amount  of  labor  and  expense  to  which  a 
claimant  has  been  put  does  not  properly  enter  into  the  question  of 
the  right  to  the  patent.^  A  person  is  not  deprived  of  his  right  to 
an  invention  made  while  in  the  service  of  another,  unless  his  em- 
ployment embraced  the  exercise  of  his  inventive  faculties.^  (a) 

Claim  for  a  patent  for  improvements  upon  existing  machines. — 
It  is  a  well-settled  rule  that  there  may  be  a  patent  for  an  improve- 
ment upon  an  existing  machine,  whether  the  latter  be  itself  patented 
or  not.  In  such  a  case,  the  inventor  of  the  improvement  must 
confine  himself  to  a  patent  for  thaf 

So,  if  old  materials  and  old  principles  be  used  in  a  state  of 
combinatio7i,  to  produce  a  new  result,  there  may  be  a  patent.  The 
invention  consists  in  the  combination,  and  the  combiner  is,  for 
the  purposes  of  a  patent,  the  "  first "  inventor  to  that  extent.^  A 
patentee  may  have  a  second  patent  for  an  improvement  on  the 
thing  first  patented.^  Under  these  rules  it  is  not  sufficient  merely 
to  place  old  parts  in  juxtaposition.  There  must  be  invention. 
This  implies  a  new  or  peculiar  function  developed  by  the  combi- 
nation ;  all  the  elements  must  so  enter  in  that  each  qualifies  the 
others.i'^  Invention  must  be  distinguished  from  mere  mechanical 
skill. 11  So,  it  has  been  held,  that  a  combination  of  old  elements 
is  patentable  where  a  new  and  useful  result  is  produced  by  their 

1  Washburn  v.  Go\M,  3  Story,  122.  ^  Hailes  v.  Van  Wormer,  20  Wall. 
See  Gaboon  v.  Ring,  1  Cliff.  592.  Ex  parte     353. 

Henry,  L.  R.  8  C'h.  App.  167.  ^  Mathews  v.  Flower,  25  Fed.  R.  830. 

2  Pitts  V.  Hall,  2  Blatch.  229.  Allen  v.  i"  Pickering  v.  McCullough,  104  U.  S. 
Rawson,  1  C.  B.  551.  310  ;  contra,  Stutz  v.  Armstrong,  20  Fed. 

3  Holliday  v.  Rheem,  18  Pa.  St.  465.  R.  843. 

4  Yoder  v.  Mills,  25  Fed.  R.  821.  "  Scott  Mfg.  Co.  v.   Sayre,  26    Fed.  R. 

5  Crane  v.  Price,  4  M.  &  G.  580.  153;  Peard  v.  .Johnson,  23  Id.  507;  Atlan- 

6  Hapgood  V.  Hewitt,  11  Biss.  184.  tic  Works  v.  Brady,  107  U.  S.  192 ; 
AfFd,  119  U.  S.  226.  Beecher   Mfg.  Co.   v.  Atwater   Mfg.  Co., 

T  Evans  i'.  Eaton,  7  Wheat.  356  ;  Whit-     114  U.  S.  523. 
temore  v.  Cutter,  1  Gall.  478. 

[a)  Cf.  Solomons  v.  United  States,  137  Locke,  150  U.  S.  193;  Jencks  v.  Langdon 
U.  S.  342  ;  Dalzell  v.  Dueber  Mfg.  Co.,  Mills,  27  Fed.  R.  622  ;  Annin  v.  Wren,  44 
149   U.  S.   315;   Lane   &   Bodley'Co.  v.     Hun,  Zb2,  post,  p.  527. 


TITLE   BY   OKIGIXAL  ACQUISITION.  509 

joint  action,  or  an  old  result  in  a  cheaper  or  more  advantageous 
manner.! 

A  patent  for  "improvements,"  —  e.  g.^  by  the  patentee,  —  is,  to 
some  extent,  construed  differently  from  an  original  patent,  since  a 
claimant  in  his  specification  may  not  only  refer  to  the  improve- 
ment which  he  now  claims,  but  to  former  rights  as  something 
known,  and  only  necessary  to  be  referred  to  for  the  purpose  of 
explaining  the  claim.  This  last  matter  is  not  to  be  construed 
with  more  strictness  and  precision  than  is  necessary  to  enable  it 
to  fulfil  that  purpose  of  explanation  for  which  it  was  introduced. 
Accordingly,  where  the  patentee  of  the  improvements  had  referred 
to  electric  currents  transmitted  through  "  metallic  circuits,"  and 
a  subsequent  improvement  (alleged  to  be  an  infringement)  used 
"  metallic  circuits  "  in  part,  and  the  earth  in  part,  it  was  decided 
that  the  expression  "  metallic  circuits  "  meant  metallic  circuits 
"  so  far  as  it  is  material  to  the  improvements  claimed  that  they 
should  be  so ; "  and  the  defendants  having  used  wholly  metallic 
circuits  in  a  respect  material  to  the  improvements  of  the  plaintiff, 
they  were  held  liable.^ 

This  general  subject  will  be  more  fully  considered  under  the 
head,  "  The  subject-matter  of  a  patent."  It  is  now  necessary  to 
notice  the  qualifications  imposed  by  the  statute  upon  the  right  to 
obtain  a  patent,  whereby  an  application  may  be  defeated  notwith- 
standing patentability. 

Invention  described  in  a  printed  publication^  either  here  or  in  a 
foreign  country. — A  true  first  inventor  or  discoverer,  so  far  as 
his  own  knowledge  is  concerned,  may  fail  to  obtain  a  patent,  or,  if 
he  obtains  it,  may  be  defeated  because  the  invention  has  been 
described  in  some  printed  publication  before  his  own  invention 
or  discovery.^ 

If  this  fact  appears,  it  is  a  good  defence  to  an  action  for  an 
infringement.*  Unless  so  described  or  patented,  the  inventor 
here  is  entitled  to  a  patent,  if  he  believed  himself  to  be  the  first 
inventor.^ 

The  rule  is  established  in  England  that  in  order  to  invalidate  a 
patent  by  a  prior  book  publication,  it  is  not  enough  to  show  that 
the  invention  was  described  in  a  published  book,  but  it  must  also 
appear  that  it  became  known  to  a  sufficient  part  of  the  "  public."  ^ 

1  Railway  Reg.  Mfg.  Co.  v.  No.  Hudson  5  O'Reilly  v.  Morse,  15  How.  U.  S.  62, 
Co.  R.  R.  Co.,  26  Fed.  R.  411  ;  Davis  v.  110  ;  Hays  v.  Sulsor,  1  Fisher  Pat.  Cas. 
Fredericks,  21  Blatch.  556.  532  ;   Bartholomew  v.  Sawyer,  4  Blatch. 

2  Telegraph  Co.  v.  Brett,  10  C.  B.  838,  347  ;  Doyle  v.  Spaulding,  19  Fed.  R.  744. 
880,  881  (18.51).  6  Plimpton  v.  Spiller,  L.  R.  6  Ch.  D. 

3  See  U.  S.  Rev,  Stats.  §  4886.  412. 
*  Judson?;.  Cope,  1  Fisher  Pat.  Cas.  615. 


510  THE  LAW  OF  PERSONAL  PROPERTY. 

The  word  "  public  "  here  seems  to  mean  persons  conversant  with 
the  particular  subject,  or  persons  who  are  desirous  of  taking  out 
patents  for  new  inventions,  and  therefore  desirous  of  making 
themselves  acquainted  with  the  course  of  inventions  generallj.i 
Under  this  principle  it  was  held  not  to  be  sufficient  that  an 
American  book  of  illustrations  containing  a  drawing  of  the  inven- 
tion was  on  a  book-shelf  in  the  Patent  Office,  but  not  entered  as  a 
donation  in  the  usual  catalogue,  though  it  appeared  that  the 
librarian  saw  it  before  the  patent  was  taken  out  in  England. ^ 
It  is  enough,  however,  if  known  to  the  public,  though  not 
used.3 

Invention  first  patented  in  a  foreign  country.  —  This  is  a  ground 
for  denying  to  an  inventor  here  a  patent,  or  defeating  it  if  granted. 
This  rule  does  not  apply  to  the  inventor  or  discoverer  who  obtained 
the  foreign  patent.  He  is  entitled  to  a  patent  here  under  the 
terms  of  the  Revised  Statutes.*  The  language  of  this  section  is : 
"No  person  shall  be  debarred  from  receiving  a  patent  for  his 
invention  or  discovery,  nor  shall  any  patent  be  declared  invalid  by 
reason  of  its  having  been  first  patented,  or  caused  to  be  patented, 
in  a  foreign  country,  unless  the  same  has  been  introduced  into 
public  use  in  the  United  States  for  more  than  two  years  prior  to 
the  application  "  for  the  patent  here.  The  time  must  expire  at 
the  same  time  with  that  of  the  foreign  patent,  and  must  in  no 
case  exceed  seventeen  years. 

Invention  known  or  used  hy  others  in  tins  country.  —  This  fact 
will  destroy  the  right  of  a  claimant,  without  reference  to  the 
point  whether  the  invention  or  discovery  is  described  in  any 
printed  book.     The  knowledge  or  use  may  be  proved  as  a  fact.^ 

Invention  or  discovery  suffered  to  go  into  public  use  hy  iyiventor 
or  discoverer.  —  This  act  is  fatal  to  a  patent  if  the  public  use  be 
suffered  to  exist  for  two  years.^  {a)  The  same  principle  exists  in 
England,  but  no  definite  time  is  fixed  there.  It  is  well  settled 
that  there  must  be  no  public  use  by  the  inventor  or  others  with 
his  consent  prior  to  the  grant  of  the  patent.''' 

Some  question  may  arise  as  to  the  meaning  of  the  expression 
"  public  use  "  in  this  connection.     It  does  not  mean  trials  of  an 

1  Per  James,    L.    J.,    in  Plimpton  v.         ^  Manning  v.   Cape  Ann,  &c.  Co.,  108 

Spiller,  L.  R.  6  Ch.  D.  412,  429.  U.  S.  462. 

•i  Plimpton  V.  Spiller,  su2yra.  ^  U.  S.  Rev.  Stats.  §  4886. 

3  Patterson   v.    Gaslight   &  Coke  Co.,  '^  Househill  Coal,  &c.  Co.  v.  Neilson, 

L.  R.  3  App.  Cas.  239.  9  CI.  &  F.  788. 


§  4887. 


(a)  The  public  use  or  sale  contemplated    or  sale  in  the  United  States.      Gandy  v. 
by  the  Revised  Statutes  is  limited  to  a  use    Maine  Belting  Co.,  143  U.  S.  587. 


TITLE   BY   ORIGINAL   ACQUISITION".  511 

incomplete  invention  by  way  of  experiment.^  (a)  It  docs,  however, 
include  a  case  where  it  comes  to  the  knowledge  of  others  than  the 
inventor,  though  not  to  the  public  at  large.'^ 

A  wide  interpretation  prevails  in  tliis  country.  In  a  recent 
case  it  was  decided  that  where  the  invention  had  been  communi- 
cated to  a  single  individual,  and  used  by  that  person  without  any 
injunction  of  secrecy  for  more  than  two  years  before  the  patent 
was  applied  for,  it  had  gone  into  public  use.®  Tiiis  seems  to  be  a 
very  unsatisfactory  construction,  as  it  gives  no  force  to  the  word 
public.     It  was  dissented  from  by  Mr.  Justice  Miller. 

However,  prior  use  must  be  proved  beyond  a  reasonable  doubt.^ 
The  effect  of  prior  public  use  was  made  severe  upon  the  inventor 
by  an  Act  of  Congress  of  March  3,  1839.  As  the  law  then  stood, 
the  inventor  lost  his  right  to  the  patent,  though  the  invention 
had  gone  into  public  use  without  his  consent.  This  rule  was  very 
recently  applied  to  the  great  case  of  the  "  driven  well "  (Green's 
patent).^  The  same  policy  Is  continued  under  the  Revised  Statutes 
incorporating  the  act  of  1839  with  a  later  act  of  1870.^ 

If  a  public  use  is  proved  for  the  required  two  years  prior  to 
application  for  a  patent,  the  burden  of  proof  will  be  on  the  appli- 
cant to  show  by  convincing  proof  that  the  use  was  not  public 
in  the  sense  of  the  statute,  but  was  for  the  purpose  of  perfecting 
an  incomplete  invention  by  tests  and  experiments.'' 

Abandonment. — A  patentee  may  so  conduct  himself  as  to  lead 
to  the  inference  that  he  has  abandoned  his  invention  to  the  public. 
This  view  may  be  tai^en  without  reference  to  the  matter  of  public 
use.  It  is  a  question  of  fact,  as  showing  intention,  A  recent 
illustration  is  found  in  the  case  where,  an  application  having 
been  rejected  at  the  Patent  Office,  the  applicant  took  no  steps 
for  eight  years  to  reinstate  it.  There  was,  accordingly,  a  presump- 
tion of  abandonment.^ 

The  Revised  Statutes  of  the  United  States  provide  that  any 
citizen  of  the  United  States,  or  alien  resident  for  one  year,  who 
has  made  oath  of  his  intention  to  become  a  citizen,  who  makes 
any  new  invention  or  discovery,  and  desires  further  time  to  ma- 
ture it,  may  file  in  the  patent  office  a  caveat  setting  forth  the 

1  In  re  Newall,  4  C.  B.  N.  s.  269.  stniing  statute  of  March  3,  1839  ;  s.  c.  cu 

2  Carpenter   v.   Smith,    9    II.    &   W,  petition  for  rehearing,  124  U.  S.  694. 
300.  6  u.  S.  Eev.  Stats.  §  4886. 

3  Egbert  v.  Lippmann,  104  U.  S.  "  Smith  &  Griggs  Mfg.  Co.  v.  Sprague, 
333.  123  U.  S.  249. 

4  Wetherell  v.  Keith,  27  Fed.  R.  364.  »  U.  S.  Kifle,  &c.  Co.  v.  Whitney  Arms 
6  Andrews  v.  Hovey,  123  U.  S.  267,  con-     Co.,  118  U.  S.  22.     See  post,  p.  538. 


(a)  Harmon  v.  Struthers,  43   Fed.  R.  437 ;  s.  c.  57  Id.  637. 


512  THE  LAW  OF  PERSONAL  PROPERTY. 

design  of  the  invention  and  its  distinguishing  characteristics,  and 
praying  protection  of  his  right  until  he  shall  have  matured  his 
invention.  The  caveat,  having  been  filed,  is  confidential,  and  is 
operative  for  one  year,  except  that  if  application  is  made  within 
the  year  by  any  other  person  for  a  patent  with  which  the  caveat 
would  interfere,  the  commissioner  of  patents  gives  notice  to  the 
caveator  by  mail.  If  the  caveator  wishes  to  avail  himself  of  his 
caveat,  he  must  file  his  regular  application  for  a  patent  within 
three  months,  the  usual  time  for  transmitting  the  notice  to  the 
caveator  through  the  mail  being  added.^ 

II.  The  subject-matter  of  a  patent.  —  The  subject  will  be  treated 
under  two  heads :  (1)  What  is  not  patentable  ;  (2)  What  is  patent- 
able. 

(1)  What  is  not  patentable.  —  Though  the  instances  falling 
under  this  head  are  extremely  numerous,  they  seem  to  be  capable 
of  arrangement  under  four  principal  classes,  1.  Where  the  sub- 
ject is  a  principle  or  mere  property  of  matter.  2.  Where  the 
application  is  for  a  result  as  distinguished  from  a  mode  of  pro- 
ducing the  result.  3.  Where,  owing  to  inventions  already  exist- 
ing, whether  patented  or  not,  there  is  no  novelty  in  the  invention  or 
discovery.  4.  Where  invention  is  not  exercised,  but  at  most  only 
mechanical  skill. 

1.  There  can  be  no  patent  for  the  discovery  of  a  mere  property  of 
matter,  such  as  that  the  inhalation  of  ether  produces  insensibility 
to  pain.  A  new  force  or  principle  can  only  be  patented  in  connec- 
tion with  the  means  by  which  it  operates.-  So  electricity  or  steam 
cannot  be  exclusively  appropriated,  except  by  mechanical  inven- 
tions or  combinations  which  produce  a  particular  result.^  A  prin- 
ciple is  not  patentable.     It  is  the  device  which  is  patentable. 

2.  It  is  a  general  rule  that  a  patent  can  only  be  had  for  a  means 
of  producing  a  result  instead  of  a  result  itself,  (a)  This  remark  is 
particularly  applicable  to  a  machine  as  distinguished  ivonx  a  j^rocess  ; 
for  in  the  latter  there  may  be  a  patent  for  the  method  of  pro- 
ducing the  result,  and  also  a  separate  claim  and  patent  for  the  result 
itself.*  The  distinction  between  a  machine  and  a  process  has 
already  been  adverted  to.  In  the  former  the  mechanical  powers 
are  used,  while  in  the  latter  the  chemical  forces  are  employed.  Of 
this,  a  good  example  is  the  manner  of  treating  India  rubber  by 

1  U.  S.  Eev.  Stats.  §  4902.  See  Phelps  8  gmith  v.  Ely,  5  McLean,  76  ;  Blanch- 
V.  Brown,  4  Blatch.  362.  ard  v.  Sprague,  3  Sumner,  535. 

2  Morton  v.  N.  Y.   Eye   Infirmary,  5  *  Merrill  v.  Yeomans,  1  Holmes,  331. 
Blatch.  116. 


(«)  Excelsior  Needle  Co.  v.  Union  Needle  Co.,  32  Fed.  R.  221. 


TITLE    BY    OKIGINAL    ACQUISITION.  513 

the   Goodyear   vulcanizing   method,  which  has  led  to  the  most 
useful  practical  results. 

B.  An  invention  may  have  been  made  so  far  as  the  mind  of  the 
■claimant  of  the  patent  is  concerned,  but  it  may  have  been  antici- 
pated by  another.  It  is  thus  destitute  of  novelty  in  the  view  of 
patent  law.  This  want  of  novelty  is  fatal.  The  want  of  novelty 
may  be  presented  in  some  one  of  the  following  forms  :  — 

A.  Something  already  known  may  be  adapted  to  a  neiv  use, 
without  any  difference  in  the  mode  of  application. ^  (a)  It  will  not 
help  the  case  that  the  new  claim  is  more  economically  worked  or 
is  more  beneficial  to  the  puljlic. 

B.  In  general,  there  is  a  want  of  novelty  where  an  already 
known  mode  of  accomplishing  a  result  is  followed,  but  the  method 
is  not  substantially  changed.^  (b)  A  similar  rule  is  adopted  in 
the  substitution  of  steel  springs  for  those  made  of  whalebone,  etc. ,3 
or  metal  springs  for  India  rubber,  though  a  superior  article  is 
produced  by  the  substitution.*  This  rule  is  applied  in  construc- 
tion for  the  purpose  of  ornament.^ 

C.  There  is  a  want  of  patentable  novelty  in  applying  an  article 
already  known  to  a  purpose  analogous  to  that  to  which  it  had 
already  been  applied.  («?)  An  illustration  is  a  case  where  a  double- 
angle  iron,  being  a  well  known  article,  was  applied  to  a  particular 
purpose,  instead  of  two  pieces  of  single-angle  iron,  riveted  to  a 
plate.^  So  the  use  of  a  prior  invention  for  a  similar  purpose  and 
with  a  similar  result,  with  only  a  trifling  change  in  the  mode  of 
application,  is  not  patentable  for  want  of  novelty.''  It  would  not 
be  a  case  of  novelty  to  take  existing  furniture-springs  and  japan 
them.^ 

4.  The  want  of  invention  or  discovery  is,  after  all,  the  chief 
objection  that  can  be  made  to  a  patent.  It  is  the  sole  object  of 
the  patent  laws  to  grant  an  exclusive  right  to  inventors.  If  there 
be  no  invention  there  should  be  no  patent.  Want  of  novelty  is  in 
a  sense  want  of  invention.     It  is  not  enough  tliat  a  thing  is  new 

1  Western  Electric  Mfg.  Co.  v.  Odell,  5  Post  v.  T.  C.  Richards,  &c.  Co.,  26 
18  Fed.  R.  321.  Fed.  R.  618. 

2  Crane  v.  Price,  4  51.  &  Gr.  580  ;  Rals-  6  Horton  v.  Mahon,  12  C.  B.  x.  s.  437; 
ton   V.  Smith,  11  H.  of  L.  Cas.  223,  253;  s.  c.  on  appeal,  16  Id.  141. 

Miller  v.  Foree,    116  U.    S.   22  ;    Drum-  ^  Goodyear  y.  Hartford  Spring  Axle  Co., 

mond  V.  Venable,  26  Fed.  R.  243.  23  Fed.  R.  36. 

3  Thompson  v.  James,  32  Beav.  570.  »  Eagleton  Mfg.  Co.  r.  West,  Bradley, 

4  Florsheim  i;.    Schilling,    26   Fed.  R.  &c.  Co.,  Ill  U.S.  490. 
^56.     AflTd,  137  U.  S.  64. 


(a)   Knapp  v.  Morss,  150  U.  S.  221.  facturing  Co.  v.  Gary,  147  U.  S.  623;  Burt 

{h)  Ansonia  Co.    v.   Electrical  Supply     v.  Evory,  133  U.  S.  349. 
Co.,  144  TJ.  S.  11.    See  also  Lovell  Manu-  (c)  Ansonia  Co.  v.  Electrical   Supply 


Co.,  supra. 


33 


514  THE  LAW  OF  PEES  ON  AL  PEOPERTY. 

in  the  sense  that  in  the  shape  or  form  in  which  it  is  produced  it 
is  not  before  known,  nor  that  it  is  useful ;  there  must  be  an  inven- 
tion or  discover!/.  The  inventive  faculties  must  be  exercised.^  It 
is  not  the  object  of  the  patent  laws  to  grant  a  monopoly  for  every 
trifling  device  which  would  naturally  and  spontaneously  occur  to 
any  skilled  mechanic  or  operator  in  the  ordinary  progress  of 
manufactures.^  The  distinction  between  such  a  mechanical  device 
and  an  invention  has  been  stated  by  the  Supreme  Court  as  follows  : 
To  justify  a  patent,  the  thing  for  which  it  is  claimed  must  "  spring 
from  that  intuitive  faculty  of  the  mind  put  forth  in  the  search  for 
new  results  or  new  methods,  creating  what  had  not  before  existed, 
or  bringing  to  light  what  lay  hidden  from  vision."  It  is  not 
enough  to  display  the  expected  skill  of  one's  calling,  or  to  exer- 
cise the  "  ordinary  faculties  of  reasoning  upon  the  materials 
supplied  by  special  knowledge  and  the  facility  of  manipulation 
which  results  from  its  habitual  and  intelligent  practice."  ^  It  would 
be  tedious  to  cite  the  various  cases  in  which  these  principles 
have  been  applied.     A  few  may  be  referred  to  for  illustration. 

There  is  no  invention  in  adapting  an  automatic  valve  (a  known 
device)  to  a  steam  fire-engine  ;  *  nor  in  filling  a  vessel  from  the 
bottom  instead  of  the  top ;  ^  nor  in  compressing  parcels  of  plaster- 
er's hair  into  a  bale  for  convenience  of  transportation  ;  ^  nor  in 
changing  an  irregular  aperture  designed  for  a  key  in  a  lock,  to 
one  of  the  size  and  shape  of  the  key ; "  nor  an  improved  roof  for 
burial  vaults,  as  that  could  be  done  by  a  skilled  workman  without 
the  exercise  of  the  inventive  faculty.^  («) 

(2)  What  is  patentable.  —  In  general  terms,  nothing  is  patent- 
able but  an  invention  or  discover//.  One  of  these  words  refers 
mainly  to  mechanical  methods,  and  embraces  machines  :  the  other 
refers  to  the  laws  of  nature,  and  includes  chemical  forces. 

There  being  at  the  present  time  a  great  mass  of  inventions  that 
have  through  lapse  of  time  ceased  to  be  protected  by  a  patent,  as 
well  as  a  large  number  to  which  protection  is  still  extended,  the 
time  and  discriminating  powers  of  courts  are  severely  taxed  in 
drawing  or  refusing  to  draw  distinctions  which  will  uphold  a  new 
claimant  for  patent-law  protection. 

1  Thompson  v.  Boisselier,  114  U.  S.  1.  ^  Rosenwasser   v.    Berry,    22   Fed.  R. 

2  Atlantic  Works  v.  Brady,  107  U.  S.     841. 

192,  200.  "^  King  v.  Gallun,  109  U.  S.  99. 

3  HoUister  v.  Benedict,  &c.  Mfg.  Co.,  7  Yale  Lock  Mfg.  Co.  ■;;.  Greenleaf.  117 
113  U.  S.  59,  72  ;  Thompson  v.  Boisselier,     U.  S.  554. 

szipra,  p.  13.  ^  French  v.  Carter,  25  Fed.  R.  41. 

*  Blake  v.  San  Francisco,  113  U.  S.  679. 


(a)  See  also  Butler  u.  Steckel,  137  U.  S.     Puetz  v.  Bransford,  31  Fed.  R.  458  ;  Leg- 
21 ;  Fond  du  Lac  County  v.  May,  Id.  395  ;     gett  v.  Standard  Oil  Co.,  149  U.  S.  287. 


TITLE    BY    OllIGINAL    ACQUISITION.  515 

A  chief  rule  is,  that  there  must  be  the  exercise  of  a  creative  or 
inventive  faculty.  A  few  examples  may  be  cited.  A  patent  had 
been  granted  for  separate  celluloid  keys  (in  imitation  of  ivory) 
for  a  musical  instrument.  A  device  for  covering  the  whole  key- 
board with  a  single  celluloid  sheet,  was  held  to  be  an  invention.^ 
So  an  invention  which  makes  tarred  wooden-pipe  a  practical 
reality .2  Nickel-plating  is  patentable,^  as  well  as  the  application  of 
celluloid  to  a  fabric  for  collars  and  cuffs.^  Success  is  an  important 
feature,  and  an  arrangement  which  makes  a  machine  practically 
useful  which  is  worthless  without  it,  is  patentable.^  This  principle 
was  applied  to  an  improvement  in  the  "  manufacture  of  celluloid," 
the  commercial  success  of  that  product  being  largely  due  to  it.^ 
So  the  production  of  a  new  and  useful  result  by  a  new  application 
of  an  old  process  has  been  held  to  be  patentable.'  This  doctrine 
cannot  be  applied  to  a  case  where  the  new  device  carries  out  the 
old  method  more  perfectly  than  before.^  (a)  It  has  been  already 
stated  that  a  patent  cannot  be  had  where  there  is  no  more  than 
the  exercise  of  mechanical  skill.  Still,  if  calculation  and  experi- 
ment were  requisite  over  and  above  mechanical  skill,  a  patent  can 
be  sustained.^ 

In  a  patent  for  a  combination  of  old  ingredients,  the  fact  that  a 
new  useful  result  is  produced  is  of  great  consequence,  and  will  in 
general  make  it  patentable.^''  The  combinatioti  is  the  novelty,  in 
such  a  case,  which  is  the  subject  of  the  patent.^  The  real  inquiry 
seems  to  be,  where  old  and  new  elements  are  combined,  or  per- 
haps old  combined  with  old,  whether  that  combination  for  which 
the  patent  is  claimed  as  a  whole  is  new.^^  ^j^     i^  {^  r^  further 

1  Celluloid  Mfg.  Co.  v.  Comstock,  &c.  Sewing  Machine  Co.  v.  Frame,  Id. 
Co.,  27  Fed.  K.  358.  596. 

2  Hobbie  (;.  Smith,  27  Fed.  R.  656.  «  Alden  Evap.  Fruit   Co.  v.  Bowen,  24 

3  United  Nickel  Co.   v.    Cal.    Electric  Fed  R.  787. 

Works,  25  Fed.  R.  475.  9  Davis  v.  Fredericks,  21  Blatch.  556. 

*  Celluloid  Mfg.  Co.  v.  Chrolithion  C.  la  Welling  v.  Crane,   14  Fed.   R.  571  ; 

&  C.  Co.,  Id.  482.  Joyce  v,  Chillicothe  Foundry,  &c.  Works, 

5  Enterprise  Mfg.   Co.   v.    Sargent,   28  15  Fed.  R.  260  ;  Wood  v.  Packer,  17  Fed. 

Fed.  R.  185.  R.  650. 

e  Celluloid  Mfg.  Co.  v.  Am.  Zylonite  "  Harrison  y.  Anderston,  &c.Co.,L.  R. 

Co.,  23  Blatch.  444  ;  s.  c.  26  Fed.  R.  692  ;  1  App.  Cas.  574. 

27  Id.  750  ;  28  Id.  195.  12  Newton  v.  Grand  Junction   Railway 

7  Cary    v.    Wolff,    24    Fed.    R.    139;  Co.,  5  Exch.  331. 

(a)  Burt  V.  Evory,  133  U.  S.  349;  function  as  before,  the  device  is  a  mere 
Busell  Trimmer  Co.  v.  Stevens,  137  U.  S.  aggregation.  National  Progress  Bunching 
423.  Machine  Co.  v.  John  R.  Williams  Co.,  44 

(b)  Not  only  must  the  combination  be  Fed.  R.  190  ;  Adams  v.  Bellaire  Stamp- 
new,  but  there  must  be  a  new  result  due  ing  Co.,  141  U.  S.  539;  Union  Edge 
to  the  co-operative  action  of  all  the  parts.  Setter  Co.  v.  Keith,  139  U.  S.  531; 
If  they  act  separately,  performing  the  same  Brinkerhoff  v.  Aloe,  37  Fed.  R.  92. 


516  THE  LAW  OF  PERSONAL  PROPERTY. 

requisite  that  the  result  for  which  the  patent  is  applied  for 
should  be  useful.  The  very  slightest  utility  will  answer  this 
requirement,  (o) 

Special  rules  have  been  established  as  to  a  process  as  distin- 
guished from  a  machine.  A  grand  element  in  this  class  of  cases 
is  discovery  of  a  law  of  nature,  or  perhaps  of  a  chemical  force, 
and  making  it  useful.  If  an  article  were  previously  known  as  a 
chemical  curiosity,  and  one  discovered  that  it  could  be  made 
useful,  his  discovery  might  be  the  subject  of  a  patent.^  The 
same  rule  would  apply  to  the  discovery  of  a  new  use.  Thus,  if 
it  were  known  that  hydrated  oxides  of  iron  would  absorb  sul- 
phuretted hydrogen,  but  it  was  subsequently  discovered  that  these 
oxides  could  be  used  to  purify  coal  gas  from  sulphuretted  hydrogen, 
the  later  discovery  w^ould  be  patentable  as  being  new  and  useful.^ 

A  patent  obtained  for  a  process,  is  not  so  strictly  confined  to 
the  specification  of  the  inventor  as  is  a  patent  for  a  machine.  In 
other  words,  the  applicant  is  not  restricted  in  the  same  way  to 
the  particular  form  of  apparatus  or  other  means  described  in  his 
api)lication.^ 

III.  Proceedings  in  the  Patent  Office  to  obtain  a  patent,  to  correct 
defects,  to  secure  a  re-issue,  and  to  determine  questions  of  inter- 
fereyice.  —  The  Patent  Office  is  a  branch  of  the  Department  of  the 
Interior,  and  in  it  are  deposited  all  records  and  other  matters  and 
things  relating  to  patents.  Its  leading  officer  is  a  Commissioner. 
There  is  also  an  Assistant  Commissioner,  and  three  Examiners- 
in-chief,  appointed  by  the  President,  with  confirmation  of  the 
Senate.  Other  officers  and  employes  are  nominated  by  the  Com- 
missioner and  appointed  by  the  Secretary  of  the  Interior.  The 
Examiners-in-chief  are  required  by  law  to  be  persons  of  com- 
petent legal  knowledge  and  scientific  ability.  They  have  power 
to  revise  adverse  decisions  of  Examiners  upon  applications  for 
patents  or  for  their  re-issue  and  in  interference  cases,  to  be  here- 
after more  fully  considered,^ 

In  obtaining  a  patent,  several  steps  may  be  taken,  mainly  of 
a  preliminary  nature,  which  are  grouped  under  this  general 
division. 

The  specification.  —  By  the  term  '■  specification  "  is  meant  a  writ- 

1  Young  V.  Fernie,  4  Giff.  577.  ^  Am.   Bell  Telephone  Co.  v.  Dolbear, 

2  Hills  V.  London  Gas  Light  Co.,  5  H.  15  Fed.  R.  448  ;  s.  c.  17  Id.  604.  Post, 
&  X.  312.  p.  532. 

4  U.  S.  Rev.  Stats.  §§  475-496. 


(a)  That  the  patented  article  has  gone    ing  Co.,  141  U.  S.  333;  McClain  y.  Ort- 
into  general  use  may  be  evidence  of  its     mayer,  Id.  419. 
utility,  see  Magowan  v.  New  York  Belt- 


TITLE    BY    OEIGINAL   ACQUISITION.  517 

ten  or  printed  statement  on  the  part  of  the  applicant  describing 
his  invention  or  discovery.  At  the  close  of  it,  a  so-called  "  claim  " 
is  made  by  him  of  that  for  which  he  deems  himself  entitled  to  be 
protected.  The  specification  and  claim  are  companions,  but  must 
be  dealt  with  separately.  The  object  of  the  specification  is  to  set 
forth  the  nature  of  the  invention,  and  the  mode  in  which  it  oper- 
ates. The  general  principle  governing-  it  is,  that  it  should  be 
drawn  with  such  fullness  and  precision  as  to  enable  one  skilled  in 
the  business  to  which  it  relates  to  construct  the  thing  patented 
from  the  description  given  in  the  specification.  To  facilitate  this 
result,  the  law  of  the  United  States  requires  models  or  drawings  to 
accompany  the  specification,  where  these  are  practicable. 

The  English  authorities  refer  to  a  "  title  "  describing  the  inven- 
tion. It  is,  however,  said  that  the  title  need  not  give  any  idea  of  the 
invention.  It  is  sufficient  if  the  specification  is  consistent  with  it.^ 
The  patent,  however,  is  void  if  the  title  is  so  generally  worded 
as  to  be  capable  of  comprising,  not  only  the  particular  invention, 
but  improvements  not  contemplated  in  it.^  So,  if  there  is  a  mate- 
rial variance  between  the  specification  and  the  title,  the  patent 
may  be  void.^ 

There  is  also  a  distinction  taken  in  England  between  a  provi- 
sional and  a  final  specification.  A  "  provisional  specification " 
is  in  the  nature  of  a  caveat^  its  principal  object  being  to  protect 
the  inventor  until  the  description  of  the  invention  is  perfected  in 
the  final  specification.*  It  is  accordingly  sufficient  in  the  provi- 
sional specification  to  describe  the  nature  of  the  invention  in  gen- 
eral terms,  without  entering  into  the  minute  details  usual  in  the 
final  specification.^ 

Still,  under  the  decisions,  great  care  must  be  taken  in  the  final 
specification  to  make  it  correspond  with  that  which  is  provisional. 
The  complete  specification  must  not  claim  anything  different 
from  that  which  is  set  forth  in  the  preliminary  one,  but  it  need 
not  extend  to  everything  so  included.*^  If  the  former  covered 
more  ground  than  the  latter,  the  patent  might  be  void."  So 
it  has  been  held  that  a  patent  was  void  because  the  nature  of 
part  of  the  invention  described  in  the  final,  was  not  suffi- 
ciently set  forth   in  the  provisional  specification.^  {a)      No  such 

1  Neilson  v.  Harford,  8  M.  &  W.  806.  6  ^nm  v.  Bibby,  L.  R.  2  Cli.  App.  127. 

2  Cook  V.  Pearce,  8  Q.  B.  1044.  7  Bailey   v.    Roberton,    L.   R.    3  App. 
8  Croll  V.  E.lgp,  9  C.  B.  479.      Comi>are     Cas.  1055. 

with  Nickels  v.  Haslaiu,  7  M.  &  Gr.  378.  »  United  Telephone  v.  Harrison,  L.  R. 

*  Stoner  v.  Todd,  L.  R.  4  Ch.  D.  58.         21  Ch.  D.  720. 
^  In  re  Newall,  4  C.  B.  n.  s.  269. 


(n)  Tickers  Sons  &  Co.  v.  Siddell,  L.  R.  15  App.  Cas.  496  ;   Nuttall  v.  Hargreaves 
[1892],  1  Ch,  23. 


518  THE  LAW  OF  PERSONAL  PROPERTY. 

distinction  between  the  provisional  and  final  specification  exists 
in  this  country. 

The  final  specification  in  England  or  the  specification  in  this 
country  is  the  basis  on  which  the  patent  rests  for  its  validity. 
The  regular  test  of  its  sufficiency,  already  stated,  is,  that  it  must 
enable  a  skilled  mechanic,  exercising  the  actual  knowledge  com- 
mon to  the  trade,  to  make  the  machine  from  it  and  by  following 
its  terms.  1  When  a  fresh  patent  is  taken  out  for  improvements, 
it  is  sufficient  if  by  reading  the  two  specifications  in  connection, 
the  mechanic  would  have  no  difficulty  in  ascertaining  what  is 
claimed.  One  object  of  the  general  rule  is,  that  when  the 
patent  expires,  the  public  may  have  the  full  and  precise  benefit 
of  the  invention  or  discovery .^ 

Before  further  considering  this  subject,  reference  should  be 
made  to  the  rules  of  construction  governing  a  specification.  As 
it  is  a  written  instrument,  the  general  rule  of  construction  is  that 
its  meaning  is  a  matter  of  law  for  the  court  and  not  for  the  jury. 
Thus,  the  question  of  novelty,  when  raised  by  the  comparison  of 
two  specifications,  would  in  general  be  a  matter  of  law,^  and  the 
court  on  such  a  comparison  may  direct  a  jury  to  find  a  verdict.'* 
If,  however,  there  be  terms  of  art  in  the  specification  and  the 
description  of  technical  processes,  questions  of  fact  may  be  pre- 
sented for  the  consideration  of  the  jury.^ 

The  general  rule  of  construction  followed  by  the  court  is,  to 
take  the  ordinary  and  proper  meaning  of  the  words,  —  that  is, 
their  popular  signification,  —  unless  there  be  something  in  the 
context  to  the  contrary.  Thus,  in  a  particular  specification,  the 
word  "  parallel "  was  construed  in  a  popular  and  not  in  its  pure 
mathematical  sense.^  This  rule  must  be  taken  with  the  qualifi- 
cation, that  if  there  be  terms  of  art,  evidence  may  be  necessary 
to  interpret  them,  even  where  the  expressions  are  identical  in 
two  specifications  bearing  different  dates.'^ 

The  specification  must  not  be  misleading.  As  a  branch  of  this 
rule,  ambiguity  may  be  fatal.^  The  court  looks  at  the  grammatical 
construction,  holding  the  specification  to  be  fatally  defective  in 
case  a  process  is  so  stated  that  it  would  not  accomplish  the  end 
designed,  even  though  a  skilled  mechanic  would  not  be  misled.^ 

1  Plimpton  V.  Malcolmson,  L.  R.  3  Ch.  5  Hill  v.  Evans,  4  De  G.  F.  &  J.  288  ; 
D.  531.  Betts  v.  Menzies,  10  H.  of  L.  Cas.  117. 

2  Newberyu.  James,  2  Mer.  446  ;  Bovill  6  ciavk  v.  Adie  (No.  2),  L.  R.  2  App. 
V.  Pimm,  11  Exch.  718.  Cas.  423. 

3  Thomas  v.  Foxwell,  5  Jur.  N.  s.  37  ;  '^  Betts  v.  Menzies,  supra. 

s.  c.  Exch.  Ch.  6  Id.  271;  Booth  v.  Ken-  8  Turner  v.  Winter,  1  T.  R.  602. 

nard,  2  H.  &  N.  84.  9  Simpson  v.  Holliday,   L.   R.   1  II.  of 

*  Bush  V.  Fox,  5  H.  of  L.  Cas.  707.         L.  Cas.  315. 


TITLE    BY   ORIGINAL   ACQUISITION.  519 

The  court  declined  to  read  the  word  "  or  "  as  "  and,"  to  uphold 
a  patent  in  the  case  cited.  Again,  an  omission  to  mention  some- 
thing necessary  for  the  beneficial  enjoyment  of  the  invention,  is 
fatal.  Nor  will  it  suffice  to  use  a  generic  word  comprising  a 
variety  of  species,  the  majority  of  which  would  be  unsuitable  to 
accomplish  the  end  designed.^  A  specification  will  be  bad  for 
including  two  parts,  one  of  which  is  not  new,^  unless,  after  elim- 
inating the  old  part,  a  residue  is  left  (which  is  sufficiently  stated) 
of  sufficient  utility,^  or  unless  the  old  part  is  to  be  used  in  con- 
nection with  and  as  subsidiary  to  the  new.* 

With  respect  to  the  statement  in  the  specification  of  the  mode 
or  means  of  accomplishing  the  result,  it  will  in  practice  be  neces- 
sary to  consider  each  case  by  itself,  to  determine  whether  enough 
has  been  stated  to  enable  a  skilled  mechanic  to  construct  it  with- 
out resorting  to  experiments.  The  following  instances  illustrate 
the  foregoing  principles. 

A  description  of  a  lamp-burner  omitted  to  state  where  the  hole 
for  the  admission  of  air  was.  The  specification  was  held  insuf- 
ficient.^ In  a  specification  for  a  "  process  "  in  combining  mate- 
rials to  make  stuccoes,  plasters,  cements,  etc.,  the  case  was  put  by 
the  court  in  the  form  of  a  dilemma.  Either  the  party  claimed  all 
alkalies  and  acids,  or  only  those  which  answered  his  purpose.  In 
the  first  aspect  the  specification  was  bad,  for  all  would  not 
accomplish  the  purpose ;  in  the  second  view  it  was  also  bad,  for 
it  did  not  specify  such  as  would  answer.^  In  a  patent  for  a  new 
method  of  drying  and  preparing  malt,  it  was  held  that  the 
word  "  malt  "  was  to  be  taken  in  its  usual  sense,  as  an  article  used 
in  the  brewing  but  not  in  the  coloring  of  beer ;  and  that  as  the 
latter  was  the  purpose  for  which  the  method  was  really  designed, 
it  should  have  been  so  stated."  A  brush,  differing  from  a  com- 
mon one  in  no  other  respect  except  that  the  hairs  or  bristles  were 
of  unequal  lengths,  cannot  be  properly  described  as  a  "  tapering  " 
brush.^  A  specification  set  forth  a  machine  for  making  paper  in 
single  sheets,  without  seam,  from  one  to  twelve  feet,  and  upwards, 
wide,  and  from  one  to  forty-five  feet  and  upwards  in  length.     It 

1  Wegniann  v.  Corcoran,   L.  R.  13  Ch.  2  Kay  v.  Marshall,  8  C.  &  F.  245. 

D.  65.     In  this  case  the  specification  de-  3  Frear.son  v.  Lop,  L.  E.  9  Ch.  D.  48. 

scribed  rollers  for  crushing  meal  as  made  *  Plimpton  v.  Spiller,  L.  R.  6  Ch.  D. 

of   "  iron  coated   with  china,  and  finally  412. 

turned  with  diamond  tools."      It  appeared  ^  Hinks  v.  Safety  Lighting  Co.,  L.  R. 

that  hard  china,  only,  could  be  used,  and  4  Ch.  D.  607. 

specially  tough,  such  as  had  scarcely  been  ^  Stevens  v.  Keating,  2  Exch.  /  /2. 

made  in  Europe  during  this  century,  and  ^  The  King  v.  Wheeler,   2  B.  &  Aid. 

that  it  must  be  fixed  in  a  peculiar  manner  345. 

to  an  iron  core,  or  spindle.    The  specifica-  »  Rex  v.  Metcalf,  2  Stark.  249. 
tion  was,  accordingly,  deemed  insufficient. 


520  THE  LAW  OF  PERSONAL  PROPEKTY. 

was  held  that  the  meaning  of  this  statement  was,  that  paper  vary- 
ing between  these  extremes  could  be  made  by  the  same  machine, 
and  that  as  the  patentee,  wlien  he  obtained  the  patent,  had  con- 
structed no  such  machine,  the  patent  was  void.^ 

If  drawings  be  annexed  to  a  specification,  and  be  properly 
referred  to  in  it,  they  may  be  taken  to  be  a  part  of  it.^  The 
model  may  also  be  resorted  to  in  aid  of  construction  where  the 
words  are  uncertain.^  According  to  the  usual  rule,  the  meaning 
of  the  words  is  for  the  court ;  the  application  of  the  facts  to  the 
specification  is  a  matter  for  the  jury,*  If  the  meaning  cannot 
be  satisfactorily  ascertained  upon  the  face  of  the  specification,  it 
is  void  for  ambiguity.^  In  case  of  the  patent  of  a  "  design,"  the 
specification  may  refer  to  a  photographic  illustration,  and  state 
that  the  design  is  fully  represented  by  the  photograph.^  As  a 
rule,  a  specification  is  sufficiently  clear  when  expressed  in  terms 
intelligible  to  a  person  skilled  in  the  art  to  which  it  relates.'  The 
same  rule  applies  in  case  of  a  combination  of  old  elements  to  pro- 
duce a  new  result.  The  test  is,  whether  a  person  having  sufficient 
skill  can  make  use  of  the  invention  without  first  ascertaining  by 
experiment  the  exact  thing  to  be  done  to  make  the  invention  of 
practical  use.^ 

There  are  three  great  ends  to  be  accomplished  in  requiring  a. 
full  and  exact  specification.  One  is,  that  the  government  may 
know  what  they  have  granted  ;  a  second,  that  licensed  persons- 
desiring  to  practise  the  invention  may  know,  during  the  term  of 
the  patent,  how  to  make,  construct,  and  use  the  invention  ;  and 
the  third,  that  other  inventors  may  know  what  part  of  the  field  of 
invention  remains  unoccupied.^  Any  attempt  to  anticipate  and 
include  future  inventions  would  be  inoperative;  and  if  words 
calculated  to  mislead  the  public  were  employed,  the  patent  might  be 
declared  void.^^  The  general  principle  is,  that  whoever  discovers 
that  a  certain  useful  result  will  be  produced  in  any  art,  machine,  or 
composition  of  matter  by  the  use  of  certain  means,  is  entitled  to  a 
patent  for  it,  provided  he  specifies  the  means  he  uses  in  a  manner 
so  full  and  exact  that  any  one  skilled  in  the  science  to  which  it 
appertains  can,  by  using  the  means  specified,  without  any  addition 

1  Bloxam  v.  Elsee,  6  B.  &  C.  169.  ^  Emerson  v.  Hogg,  2  Blatch.  1. 

2  Earle  v.   Sawyer,  4   Mason,  1 ;  Hogg  ^  Dobson  v.  Dornau,  118  U.  S.  10. 

V.  Emerson,   11  How.  U.  S.  587  ;  Parker  ^  Loom  Co.  v.  Higgins,  105  U.  S.  580  ; 

V.  Stiles,  5  McLean,  44;  Kittle  v.  Merriam,  Jenkins  v.  Walker,  1  Holmes,  120. 
2  Curt.  475.  ^  Jenkins  v.  Walker,  supra. 

3  Frazer  v.  Gates,   &c.  Iron  Works,  22  ^  Gill  v.  Wells,  22  Wall.  1,  25. 
Fed.  K.  439.                                                          i"  Carlton  v.  Bokee,  17  Wall.  463. 

*  Brooks  V.  Jenkins,    3  McLean,  432, 
442. 


TITLE    BY    ORIGINAL    ACQUISITION.  521 

to  or  subtraction  from  them,  produce  precisely  the  result  de- 
scribed. If  this  cannot  be  done  by  the  means  the  applicant 
describes,  the  patent  is  yoid.^ 

This  rule  is  applicable  in  general  terms  to  a  process  as  well  as 
a  machine,  though  it  cannot  be  applied  with  the  same  rigor  and 
definiteness  in  the  latter  as  in  the  former. 

The  applicant  must,  in  connection  with  his  application,  make  an 
oatli  before  a  person  authorized  by  law  to  administer  oaths  that  he 
verily  believes  himself  to  be  the  original  and  first  discoverer  of 
the  subject-matter  for  which  a  patent  is  asked,  and  that  he  does 
not  believe  that  the  same  was  ever  before  made  or  used.  He  also 
must  state  of  what  country  he  is  a  citizen.^  The  commissioner 
examines  the  invention  or  discovery,  and  if  it  appears  that  the 
claimant  is  justly  entitled  to  it  by  law,  and  that  the  invention  is 
sufficiently  useful  and  important,  he  issues  a  patent  accordingly.'^ 

Claim  and  disclaimer.  —  At  the  close  of  the  specification  there 
follows,  in  brief  terms,  the  "  claim  "  of  the  inventor.  This  may 
be  of  such  a  nature  as  to  be  too  broad  in  its  terms,  or  it  may  be 
impracticable,  or  have  some  other  defect.  A  "  disclaimer  "  may 
then  be  resorted  to  for  the  purpose  of  correcting  the  defect.  The 
subject  of  "  disclaimer  "is  regulated  by  statute  both  in  England 
and  the  United  States.* 

The  object  of  allowing  the  "  disclaimer"  is  this  :  where  a  speci- 
fication contains  a  good  and  sufficient  description  of  a  useful  in- 
vention, and  it  has  something  annexed  to  it  which  is  capable  of 
being  separated  from  it,  leaving  the  original  description  good 
and  sufficient  without  the  necessity  of  material  addition,  then  the 
vicious  excess  can  be  removed  by  a  disclaimer.^ 

The  relief  afforded  by  a  disclaimer  does  not  extend  to  the  case 
where  the  patent  comprises  an  impracticable  generality,  and  the 
aim  of  the  patentee  is  to  alter  the  specification  so  as  to  show  a 
specific  process.^  Such  a  proceeding  would  be  more  pertinently 
termed  a  substitution  of  a  new  claim. 

The  laws  of  the  United  States  permit  a  disclaimer,  where, 
through  inadvertence,  accident,  or  mistake,  and  without  any  fraud- 
ulent intent,  the  patentee  has  claimed  more  than  that  of  which  he 
was  the  original  or  first  inventor.  The  patent  is  still  valid  for  that 
which  is  truly  and  justly  his  own,  provided  that  this  is  a  mate- 
rial or  substantial  part  of  the  thing  patented.     The  disclaimer  is 

1  Burr  V.  Covvperthwait,  4  Blatch.  163;  ^  Ralston  v.  Smith,  11  H.  of  L.  Cas.  223, 
O'Reilly  v.  Morse,  15  How.  U.  S.  62,  119.     243. 

2  U.  S.  Rev.  St.  §  4892.  6  Ralston  v.  Smith,  supra;  Globe  Nail 

3  Id.  §  4893.  Co.   V.    Superior   Nail   Co.,    27  Fed.   R. 
*  46&  47  Viet.  c.  57;  U.  S.  Rev.  Stats.      450. 

§4917. 


522  THE  LAW  OF  PERSONAL  PROPERTY. 

deemed  to  be  a  part  of  the  original  specification  as  to  the  extent  of 
his  interest.  It  will  not  affect  any  action  or  proceeding  at  the  time 
of  its  filing,  except  so  far  as  to  the  matter  of  unreasonable  delay 
in  filing  it.^ 

The  scope  of  a  patent  must  be  limited  to  the  invention  covered 
by  the  claim.^  An  inventor  may,  however,  amend  or  enlarge  his 
claim  before  the  issue  of  his  patent,  where  this  is  warranted  by  the 
specification.^  The  plain  meaning  of  the  words  is  not  be  extended 
by  construction,*  nor  to  matters  of  doubtful  implication.^  A  claim 
in  the  case  of  a  machine  not  confined  to  the  mechanism,  but  ex- 
tended to  the  mode  of  operation  generally,  is  void.'^ 

If  the  Patent  Office  imposes  upon  an  inventor  disclaimers,  etc., 
and  he  accepts  them,  they  are  said  to  be  binding  on  him,  as  they 
are  in  the  nature  of  conditions,  and  are  imposed  for  the  protection 
of  third  persons.'^  A  patent  is  not  to  be  construed  by  the  court  con- 
trary to  a  disclaimer.^  Failure  to  file  a  disclaimer,  where  proper 
before  suit,  will  deprive  the  plaintiff  of  costs.^ 

Surrender  and  reissue.  —  This  topic  is  closely  connected  with 
defects  in  the  specification  or  claim,  and  is  regulated  by  thestatute.^*^ 
The  law  provides  that  whenever  a  patent  is  invalid  by  reason  of 
an  insufficient  specification  or  excessive  claim,  made  through  inad- 
vertence, accident,  or  mistake,  and  without  fraud,  the  commis- 
sioner shall,  on  the  surrender  of  the  patent,  cause  a  new  one  to 
issue  with  a  corrected  specification  to  the  proper  parties,  the  sur- 
render to  take  effect  on  the  issue  of  the  amended  patent.  New 
matter  is  not  to  be  introduced  into  the  specification  ;  and  in  case 
of  a  machine  patent,  where  there  may  be  models  or  drawings,  each 
can  only  be  amended  by  the  other ;  but  where  there  is  neither 
model  nor  drawing,  amendments  may  be  made  on  satisfactory 
proof  that  the  new  matter  or  amendment  was  a  part  of  the 
original  invention. 

The  court,  notwithstanding  the  re-issue,  has  power  to  compare 
the  re-issued  patent  with  the  original,  and  to  declare  the  re-issue 
void,  as  being  too  broad,^^  as  well  if  it  embraces  inventions  not 
included  in  the  original  patent,!^  as  where  the  original  was  for  a 

1  U.  S.  Rev.  St.  §  4917.  ^  Atlantic  Giant  Powder  Co.  v.  Hulings, 

2  Yale  Lock  Mfg.  Co.  v.  Greenleaf,  117     21  Fed.  R.  519. 

U.  S.  554.  9  U.  S.  Rev.  St.  §  4922. 

3  R'way  Reg.     Mfg.   Co.  v.   No.   Hud-         1°  Id.  §  4916. 

son  Co.  r".  R.  Co.,  24  Fed.  R.  793.  "  Gosling   v.   Roberts,   106   U.    S.   39  ; 

*  Becker  v.  Hastings,  22  Fed.  R.  827.  HolTheins  v.  Ru.ssell,  107  Id.  132  ;  Coch- 

5  Fricke  v.  Hum,  Id.  302.  rane  v.    Badische,    etc.    Fabrik,    111    Id. 

6  Hatch  V.  Moffitt,  15  Fed.  R.  252.  293  ;  Malin  v.  Harwood,  112  Id.  354. 

7  New  York  Belting,  etc.  Co.  v.  Sibley,  12  wi^g  „,  Anthony,  106  U.  S.  142. 
15  Fed.  R.  386. 


TITLE    BY   ORIGINAL   ACQUISITION.  523 

mechanism,  and  the  re-issue  was  for  a  process,  or  for  a  different 
conti-ivance.i  But  where  there  is  no  expansion  of  the  claims  of  the 
original  patent,  the  re-issue  is  valid.^  Diligence  must  be  used  in 
ap])lying  for  a  re-issue,  unless  the  delay  can  be  satisfactorily  ex- 
plained. The  lapse  of  two  years  justifies  a  demand  for  such 
explanation.^  (a)  After  a  disclaimer,  a  re-issue  cannot  be  prop- 
erly granted  for  the  part  disclaimed  ;  and  if  the  re-issued  patent 
covered  the  part  disclaimed,  it  would  to  that  extent  be  invalid.^ 

Interference  cases.  —  Interference  cases  arise  in  the  following 
manner.  An  application  having  been  made  for  a  patent,  the 
commissioner  is  of  opinion  that  it  would  interfere  with  a  pending 
application  or  with  an  existing  patent.  He  thereupon  gives  notice 
to  the  applicants  and  patentee,  if  any,  and  directs  an  assistant, 
called  the  Primary  Examiner,  to  proceed  to  determine  the  question 
of  the  priority  of  invention.  A  patent  may  issue  to  the  one  who 
is  thus  decided  to  liave  the  priority,  unless  an  appeal  is  taken  from 
the  Interference  Examiner  to  the  board  of  Examiners-in-chief  ; 
and  any  party  dissatisfied  with  their  decision  may  appeal  to  the 
Commissioner  in  person.^ 

A  conclusion  reached  in  this  way  is,  after  all,  not  decisive. 
There  has  not  been,  in  the  proper  sense,  any  judicial  decision 
having  a  binding  effect.  It  is  still  open  to  any  party  interested 
in  an  alleged  interference  to  file  a  bill  in  equity  against  the  inter- 
fering patentee  and  those  claiming  under  his  patent,  and  in  the 
due  course  of  equity  practice  the  court  will  have  power  to  adjudge 
either  of  the  patents  void,  as  the  circumstances  of  the  case  may 
require.  This  decision  will  only  be  binding  on  the  parties  to  the 
suit  and  their  representatives.^ 

Appeal  in  cases  other  than  interfereiice  cases.  —  If  a  party  in 
other  cases  is  dissatisfied  with  the  decision  of  the  Commissioner, 
he  may  appeal  to  the  Supreme  Court  of  the  District  of  Columbia.  (6) 
The  case  is  confined  on  the  appeal  to  the  discussion  of  "  reasons 
of  appeal "  set  forth  by  the  appellant  in  writing.  The  appeal  is 
disposed  of  in  a  summary  way,  and  the  revision  governs  the  action 
of  the  Commissioner.     This  proceeding  is  designed  to  determine 

1  Eachus  V.  Broomall,  115  U.  S.   429;  «  Wollensak  v.  Reiher,  115  U.  S.  96. 
Moffitt    V.  Rogers,   106  U.  S.  423;   s.  P.  *  Cartridge  Co.  v.  Cartridge  Co.,   112 
109  U.  S.  641.  U.  S.  624. 

2  Yale  Lock  Mfg.  Co.  v.  Sargent,  117  ^  U.  S.  Rer.  St.  §§  4909,  4910. 
U.  S.  536.                                                                  «  Id.  §  4918. 

(a)  Cf.  Topliff  V.  Topliff  and  another,  other   cases,  are   now  determined   by  the 

145  U.  S.  156  ;   Electric  Gas  Lighting  Co.  Court   of  Appeals  of  the  District  of  Co- 

V.  Boston  Electric  Co.,  139  U.  S.  481.  lumbia,    created   by   the   Act  of   Feb.    9, 

(h)  Appeals  from  the  decision   of  the  1893.     See  Ch.  74  Laws  of  1893,  §  9. 
Commissioner,    both   in  interference   and 


524  THE  LAW  OF  PERSONAL  PROPERTY. 

whether  or  not  a  patent  should  be  granted.  It  does  not  prevent 
a  partv  from  contesting  in  any  court  the  validity  of  a  patent 
which  may  be  granted  under  the  decision,  where  such  validity 
is  called  in  question.^  On  the  other  hand,  if  the  application  is 
refused,  the  applicant  may  have  his  remedy  by  bill  in  equity,  with 
proper  parties,  and  his  rights  may  be  regularly  determined  by 
judicial  action.^ 

Special  matters  concerning  the  issue  of  a  'patent.  —  1.  Abandon- 
ment after  filitic/  application.  All  applications  shall  be  completed 
and  prepared  for  examination  within  two  years  after  filing  the 
application,  otherwise  the  presumption  of  abandonment  will  be 
raised,  unless  it  be  satisfactorily  shown  that  the  delay  was 
unavoidable.^ 

2.  Bights  of  assignee  of  the  inventor.  Reference  is  not  made 
here  to  the  assignee  of  the  patent,  but  to  the  assignee  of  the  inven- 
tion or  discovery.  Such  an  assignment  should  be  recorded.  The 
application  should  be  made  and  the  specification  should  be  verified 
by  the  inventor  or  discoverer,  and  any  corrected  specification 
signed  by  him,  if  living.* 

3.  Death  of  inventor  before  patent  issued.  In  this  case  the 
patent  issues  to  the  executor  or  administrator  of  the  inventor. 
If  the  inventor  died  intestate,  it  is  held  in  trust  for  the  heirs  at 
laiv  ;  if  he  left  a  will  disposing  of  the  invention  in  trust  for  the 
devisee.  The  representatives  in  such  a  case  make  the  requisite 
oath  or  affirmation.^ 

IV.  Substantive  rights  acquired  under  a  patent.  —  (1)  The 
pate7it  itself.  —  The  patent  is  issued  in  the  name  of  the  United 
States,  and  is  signed  by  the  Secretary  of  the  Interior,  or,  under 
his  direction,  by  one  of  the  Assistant  Secretaries  of  the  Interior, 
and  countersigned  by  the  Commissioner  of  Patents,  and  recorded 
with  the  specifications  in  the  Patent  Office.^ 

It  contains  a  short  title  or  description  of  the  invention  or  dis- 
covery, and  a  grant  to  the  patentee,  his  heirs  or  assigns,  of  an 
exclusive  right  for  the  term  of  seventeen  years,  to  make,  use,  and 
vend  the  invention  or  discovery  throughout  the  United  States. 
The  specification  and  drawings  are  annexed  to  the  patent,  and 
form  a  part  of  it.'''  The  date  of  the  patent  is  not  to  be  later  than 
six  montlis  from  the  time  when  it  was  passed  and  allowed  and 
notice  given  to  the  patentee  or  his  agent,  and  the  prescribed  fee 
must  be  paid  within  that  time.^     If  payment  is  not  so  made  the 

i  U.  S.  Rev.  St.  §§  4911-4914.  «  Id.  §  4883  ;  25  Stat.  L.  40,  Feb.  18, 

2  1,1.  §  491.').  1888. 

3  la.  §  4894.  "^  W.  §  4884. 
i  Id.  §  4895.  «  M.  §  4885. 
6  Id.  §  4896. 


TITLE    BY    OKIGINAL    ACQUISITION.  525 

patent  will  be  withheld,  but  a  new  application  (the  same  as  in.  the 
case  of  an  original  application)  may  be  made  within  two  years. 
Still,  no  person  will  be  held  responsible  in  damages  for  the  manu- 
facture or  use  of  the  thing  for  which  a  patent  is  ordered  to  issue 
under  the  renewed  application,  prior  to  the  issue  of  the  patent. 
If  the  question  of  abandonment  is  presented  at  the  time  of  the 
renewed  application,  it  is  to  be  treated  as  a  question  of  fact.^ 

The  rules  of  construction,  as  applied  to  patents,  should  be  noted. 
This  topic  has  been  to  some  extent  anticipated  in  considering  the 
construction  of  a  specification.  The  general  rule  is,  that  they  are 
to  be  construed  in  a  liberal  manner,  so  as  to  give  effect  to  the 
right  of  the  patentee.  The  cases  on  this  point  are  numerous.  A 
few  are  cited  in  a  note.^  This  rule  does  not  affect  the  general 
principle  that  it  must  be  so  certain  as  to  be  understood  by  those 
acquainted  with  the  subject.  As  before  stated,  it  is  to  be  con- 
strued in  connection  with  the  specification  and  drawing. 

The  right  to  a  patent  consists  in  the  exclusive  right  to  make, 
use,  and  vend  the  thing  patented.  This  docs  not  embrace  the 
product  of  the  thing  patented.  An  illustration  is,  that  a  patent 
for  tools  to  make  a  particular  article  of  furniture  would  not  confer 
an  exclusive  right  to  sell  the  furniture  when  made.^  Nor  does  a 
patent  securing  the  exclusive  right  to  manufacture  certain  medi- 
cines include  the  right  to  prescribe  or  administer  them  in  opposi- 
tion to  the  law  of  a  State  requiring  one  practising  medicine  to  be 
a  licensed  physician.^ 

(2)  Derivative  or  subordinate  substantive  rights.  —  1.  Re7ieival 
or  extension.  It  is  contrary  to  the  policy  of  the  existing  patent 
laws  to  grant  an  extension  of  a  patent,  unless  it  were  originally 
granted  prior  to  March  2,  1861.  In  that  event,  the  patent  may, 
under  certain  conditions  prescribed  by  law,  be  so  extended,  as  if 
it  had  been  originally  granted  for  twenty-one  years.^  The  benefit 
of  the  extension  or  renewal  enured  to  assignees  of  the  patent 
to  the  extent  of  their  interest.^  Similar  rules  are  applied  to 
patentees  of  designs.'''  It  is  only  necessary  to  refer  briefly  to  this 
topic,  as  the  period  during  which  renewals  could  be  applied  for 
has  now  elapsed. 

2.  Assignments,  licenses,  etc.  One  may  purchase  or  otherwise 
acquire  a  machine  or  other  patentable  article  from  an  inventor 
or  discoverer  before  any  patent  is  taken  out.     In  this  case  he  may 

1  U.  S.  Rev.  St.  §  4897.  *  Jordan    v.    Overseers   of  Dayton,    4 

2  Grant  v.  Raymond,  6  Pet.  218  ;  Tur-     Ohio,  294. 

rill  V.  Michigan,  &c.  R.  R.  Co.,  1  Wall.  491.  5  u.  S.  Rev.  St.  §§  4924-4927. 

3  Boyd  V.  Brown,  3  McLean,  295;  post,  «  Id.  §  4928. 
p.  530.  7  Id.  §  4932. 


526  THE  LAW  OF  PERSONAL  PROPEKTY. 

continue  to  use,  or  he  may  sell  the  speciiic  thing  thus  acquired, 
after  the  patent  is  obtained.^  (a) 

A  patent,  or  any  interest  therein,  is  assignable,  at  law,  by  an 
instrument  in  writing,  and  the  patentee  may  grant  and  convey  an 
exclusive  right  under  his  patent  within  the  whole  or  any  specified 
part  of  the  United  States.^  An  assignment  may,  accordingly,  be 
considered  territorially,  and  there  may  be  an  exclusive  right  for  a 
State,  county,  city,  town,  or  other  division  of  the  country,  without 
reference  to  other  States,  counties,  etc.  An  assignment  will  be 
void  as  against  a  subsequent  mortgagee  or  purchaser  for  a  valua- 
ble consideration,  acting  in  good  faith,  unless  it  be  recorded  in 
the  Patent  Office  within  three  months  from  its  date.^  An  un- 
recorded transfer  would,  notwithstanding  this  provision,  be  valid 
as  between  the  parties  themselves.^  It  is  not  necessary  that  an 
agreement  to  assign  should  be  in  writing.^  When  a  patent  is 
issued  to  two  or  more  persons,  each  may  assign  his  interest. 

Where  a  territorial  right  is  created  by  assignment,  the  assignee 
may  lawfully  sell  within  the  territory  to  a  purchaser  who,  he 
knows,  intends  to  remove  the  thing  purchased  elsewhere  ;  and 
such  purchaser  may  use  the  article  in  another  territory.^  (h) 

There  may  also  be  assignees  of  an  undivided  interest,  —  e.  g., 
A.  may  own  an  undivided  half,  and  B.  and  C.  each  an  undivided 
fourth. 

The  most  complicated  question  arising  in  the  law  of  assignment 
is  that  of  licenses.  A  licensee  is  one  who  has  transferred  to 
him,  in  writing  or  orally,  a  less  or  different  interest  than  the 
whole  interest,  or  an  undivided  part  of  such  whole  interest,  or 
an  exclusive  sectional  (territorial)  interest.'' 

A  license  may  be  implied,  as  well  as  express.  It  may  be  im- 
plied from  such  facts  as  follows :  A  person  in  the  manufactory  of 

1  U.  S.  R.  S.  §  4899.  ^  Burr  v.  De  LaVergne,  102  N.Y.  415. 

2  Id.  §  4898.  6  Hobbie  v.  Jennisou,   40  Fed.  K.  887. 

3  Id.  §  4898.  See  also  Adams  v.  Burke,  17  Wall.  453  ; 
*  Horue  v.  Chatham,  64  Tex.  36  ;  Peck  McKay  v.  Wooster,  2  Sawy.  373. 

V.  Bacon,  18  Conn.  377  ;  Saxton  v.  Ault-  '^  Potter  v.  Holland,  4  Blatch.  206  ;  1 

man,  15  Ohio  St.  471.  Fisher's  Pat.  Cas.  327. 


(a)  An  invention  which  has  not  been  cisious   in    the   Circuit   Courts,   no   right 

patented  may  be  sold  and  transferred  by  to  take  them  to  the  territory  of  another 

oral  agreement.     Jones  v.   Reynolds,  120  assignee,  and  there  sell  them  in  the  usual 

N.    Y.  213.     See   also  Dalzell  v.  Dueber  course  of  trade,  without   the   consent   of 

Manufacturing  Co.,  149  U.  S.  315.  the  latter  assignee.     California  Electrical 

(h)  Hobbie  v.  Jennison,  supra,  was  af-  Works  v.  Finck,  47  Fed.  R.  583  ;  Standard 

firmed  on  appeal  to  the  Supreme  Court.  Folding  Bed  Co.  v.  Keeler,  41  Fed.  R.  51  ; 

See   149    TJ.   S.   355.     The   purchaser   of  Id.  37  Fed.   R.  693  ;  Hatch  v.  Adams,  22 

patented  articles   from   an   assignee   has,  Fed.  R.  434  ;  Hatch  v.  Hall,  Id.  438. 
however,  according  to  the  current  of  de- 


TITLE    BY    ORIGINAL   ACQUISITION.  527 

his  employer,  while  receiving  wages,  makes  an  invention  at  his 
employer's  expense,  and  his  wages  are  increased  in  consequence 
of  the  useful  results  of  his  experiments,  and  he  permits  his  em- 
ployer to  use  the  invention,  without  compensation.^  (a)  An  ex- 
press license,  as  the  term  imports,  is  one  made  by  express  words. 
A  license  need  not  be  recorded.^  A  licensee  may  have  an  interest 
in  the  nature  of  a  trust,  while  the  patentee,  being  the  legal  owner, 
would  be  the  proper  plaintiff  in  an  action  against  a  third  person 
for  an  infringement.  In  such  a  case,  the  patentee  would  be  but 
a  nominal  plaintiff,  and  could  not  settle  the  action  without  the 
consent  of  the  licensee.^  (J) 

Licenses  may  assume  a  variety  of  forms.  Thus,  they  may  be 
general  or  limited.  There  may  be  a  license  to  make  a  patented 
machine ;  again,  there  may  be  a  mere  right  to  use  it.  A  right  to 
use  would  not  imply  a  right  to  make,  though  there  would  be  an 
implied  right  to  repair.*  (<?)  The  sale  of  a  machine  by  a  patentee 
implies  the  right  to  use  it.^  In  this  way,  a  license  may  be  re- 
stricted at  the  pleasure  of  the  patentee.  It  may  be,  for  example, 
to  use  "  at  his  own  establishment."  In  such  a  case,  it  can  only 
be  used  there.^  A  license  to  a  firm  is  not  necessarily  revoked 
where  one  of  the  partners  buys  out  the  interest  of  another.''  One 
licensed  to  use  a  machine  in  a  particular  locality  cannot  lawfully 
authorize  another  person  to  use  it  in  a  different  locality.^  A 
license  need  not  be  recorded,  even  as  against  a  subsequent  pur- 
chaser.    In  fact,  record  is  nugatory.^ 

A  licensor  may  grant,  within  a  specified  territory,  the  right  to 
make  and  sell  for  the  home  trade,  and  reserve  to  himself  the 
advantage  of  competing  with  sellers  in  foreign  markets.^*^  If 
the  owners  of  a  patent  admit  to  a  licensee  that  a  third  party 

1  MeClurg  v.  Kingsland,  1  How.  U.  S.  6  Rubber  Co.  i'.  Goodyear,  9  Wall.  788. 

202  ;  17  Pet.  228  ;  Slemmer's  Appeal,  58  ">  Belding  v.  Turner,  8  Blatch.  321. 

Pa.   St.    155.      See  Sanford  v.   Messer,   5  ^  Steam    Cutter    Co.     v.    Sheldon,    10 

Fisher's  Pat.  Cas.  411.  Blatch.  1. 

-  Brooks  V.  Byain,  2  Story,  525.  »  Chambers  v.  Smith,  5    Fisher's   Pat. 

3  Goodyear  v.  Bishop,  4  Blatch.  438.  Cas.  12. 

4  Bicknell  v.  Todd,  5  McLean,  236.  "  Dorsey,  &c.  Rake  Co.  v.  Bradley  Mfg. 

5  Wilson  V.  Stolley,  4  McLean,  275.  Co.,  12  Blatch.  202,  205. 


(a)  Solomons  v.  United  States,  137  U.  S.  (No.  3).  144  U.  S.  248  ;  Rice  v.   Boss,  46 

342  ;    Annin   v.    Wren,    44   Hun,     352 ;  Fed.  R.  19. 

Fuller  &   Johnson  Manufacturing  Co.  v.  (r)  An  express   license   to  use  would, 

Bartlett,  68  Wis.  73  ;  Jencks  v.  Langdon  however,  confer  the  right  to  make  for  the 

Mills,  27   Fed.  R.  622.     See  also  Dalzell  purposes  of  the  use.     lUingworth  v.  Spaul- 

V.  Dueber  Mfg.  Co.,  149  U.  S.  315,  and  ding,   43  Fed.  R.   827  ;   The  Steam  Stone 

ante,  p.  508.  Cutter  Co.  v.  Shortsleeves,  16  Blatch.  381 ; 

Q))  AVaterman  v.  Mackenzie,   138  U.  S.  Hamilton  v.  Kingsbury,  15  Id.  64. 
252  ;  Pope  Mfg.  Co.  v.  GormuUy  Mfg.  Co. 


528  THE  LAW  OF  PERSONAL  PROPERTY. 

has  a  right  to  grant  the  license,  and  such  licensee  acts  upon 
their  representation,  they  will  be  prevented  or  estopped  from  show- 
ing that  such  third  party  had  no  right  to  grant  the  license.^ 

A  compensation,  either  for  an  assignment  or  a  license,  may  be 
paid  by  a  fee  proportionate  to  the  number  of  articles  sold  or  manu- 
factured. This  is  termed  a  "  royalty."  Questions  accordingly 
arise  whether  such  a  licensee  can  set  up  the  invalidity  of  the 
patent  as  a  defence  to  an  action  to  recover  the  royalties.  kSuch 
questions  are  variously  answered  in  the  decisions.  Some  authori- 
ties treat  the  case  as  analogous  to  that  of  a  tenant  who  is  not  per- 
mitted to  dispute  the  title  of  his  landlord  as  long  as  his  possession 
is  undisturbed.  In  some  cases  the  matter  assumes  a  technical 
aspect,  proceeding  on  the  basis  of  the  license  being  under  seal, 
and  having  the  effect  of  a  covenant  in  a  sealed  instrument.^ 

In  some  cases  the  invalidity  of  the  patent  has  been  allowed 
as  a  defence,  on  the  ground  of  want  of  consideration.^  The 
better  opinion,  however,  seems  to  be  that  the  invalidity  of  the 
patent  is  not  of  itself  a  sufficient  defence.  The  licensee  has  really 
obtained  what  he  bargained  for,  which  was  the  right  to  use  and 
enjoy  the  patent  for  a  specified  time,  without  molestation,  (a) 
It  is  an  entirely  different  case  from  that  of  a  sale,  wherein  the 
purchaser  does  not  receive  what  he  bargained  for,  as  there  is  then 
a  failure  of  consideration.  If,  however,  the  patent  is  rescinded 
or  revoked,  there  is  a  true  failure  of  consideration,  and  the  revoca- 
tion is  a  defence.* 

A  patentee  may  assign  his  right  to  recover  for  infringements 
occurring  before  the  assignment  of  the  patent.^  The  rules  of  law 
applicable  to  an  assignment  of  a  lease  apply  to  an  assignment  of 
a  right  acquired  by  contract  to  use  a  patented  machine  on  payment 
of  a  royalty.^  If  an  exclusive  right  to  make  and  sell  the  inven- 
tion during  the  life  of  the  patent  be  granted  to  A.  for  a  royalty, 
an  action  for  an  infringement  against  the  grantor  may  be  brought 
by  A.,  whether  he  be  deemed  a  licensee  or  a  grantee.'^  The  ques- 
tion of  what  amounts  to  a  fixed  license  fee  or  established  royalty, 
was  considered  in  a  recent  case.^  The  foregoing  principles  may 
be  embodied  in  the  following  rules  :  — 

1  Gear  v.  Grosvenor,  1  Holmes,  215.  *  Marston  v.  Swett,  66  N.  Y.  206  ;  s.  c. 

2  Bowman  v.  Taylor,  2  A.  &  E.  278  ;  82  Id.  526  ;  White  v.  Lee,  14  Fed.  R.  789, 
Wilder  v.  Adams,  2  Woodb.  &  M.  Cir.  Ct.     791,  and  cases  cited. 

329.  5  Hamilton  v.  Rollins,  5  Dillon,  495. 

3  Harlow  v.   Putnam,   124  Mass.  553.  «  Wilde  v.  Smith,  8  Daly,  196. 

Cf.  Crossley  v.  Dixon,  10  H.   of  L.  Cas.  "^  Stanley  Rule,    &c.  Co.    v.  Bailey,  14 

293 ;   Clark  v.  Adie,   L.  R.  2  App.  Cas.     Blatch.  510. 

423.  8  Black  v.  Munson,  14  Blatch.  265. 


(a)  See  Hyatt  v.  Ingalls,  124  N.  Y.  93. 


TITLE    BY    ORIGINAL    .VCQUISITION.  529 

Rule  1.  A  license  may  be  a  personal  right,  and  accordingly 
not  assignable.  In  such  a  case  the  license  will  expire  at  tlie 
death  of  the  licensee.  Thus,  a  license  to  "  construct  and  use  "  a 
patented  article  is  personal.i  Another  instance  is  a  license  to  use 
a  particular  process  at  the  licensee's  place  of  business.^  On  the 
other  hand,  a  license  requiring  no  royalty,  and  being  granted 
to  the  licensee,  his  executors,  administrators,  and  assigns,  is 
assignable.^ 

Rule  2.  The  doctrine  of  estoppel  in  pais  is  applicable  to 
licenses.  Thus,  a  licensee  is  estopped  from  disputing  the  validity 
of  a  patent  under  which  he  is  manufacturing  goods.*  (ci)  This  is 
true,  in  general,  where  he  has  undisturbed  use  of  the  patent.^ 
An  estoppel,  being  mutual,  may  work  to  the  advantage  of  the 
licensee  or  assignee.  Thus,  if  a  patent  having  a  potential  exist- 
ence is  assigned  for  a  valuable  consideration,  an  assignee  will  have 
a  corresponding  interest  in  the  patent  subsequently  granted.^  So, 
if  a  patentee  warrants  his  title,  and  afterwards  becomes  owner.'''  (6) 
It  has  further  been  held  that  if  there  be  two  joint  patentees  (A. 
and  B.),  and  one  of  them,  A.,  without  the  other,  assigns  to  C,  an 
estoppel  is  worked  in  favor  of  the  latter,  and  B.  must  look  to  A. 
for  an  accounting  of  receipts.^  On  similar  principles,  if  a  licensee 
agrees  not  to  contest  the  validity  of  a  patent,  it  will  stand  as  be- 
tween the  licensor  and  licensee,  though  as  between  other  parties 
it  may  be  declared  void.^ 

Rule  3.  A  licensor  cannot,  in  general,  maintain  a  bill  in 
equity  for  an  accounting,  as  he  has  a  plain  and  adequate  remedy 
in  a  court  of  law  to  recover  his  royalty.^"  But  if  the  licensee  has 
covenanted  to  make  monthly  reports  of  sales,  and  refuses  to  do 
so,  a  court  of  equity  has  jurisdiction  to  compel  a  discovery,  etc.^i 

Rule  4.  In  some  instances  a  license  may  be  presumed  from 
the  acts  of  the  parties,  —  e.  ^.,  by  the  claimant  of  the  license 
having,   with  the  consent  of  the  patentee,  experimented  at  the 

1  Curran  v.  Craig,  22  Fed.  K.  101.  6  Maurice  v.  Devol,  23  W,  Va.  247. 

2  Gibbs  V.    Hoefuer,    19    Id.  321  ;    see  7  Gottfried  v.  Miller,  104  U.  S.  521. 
Oliver  v.  Kumford  Chera.  Works,  109  U.  S.  s  Curran  v.  Burdsall,  20  Fed.  R.  835. 
75  ;  Troy  Iron  &  N.   Factory  v.  Corning,  9  Pope  Mfg.  Co.  v.   Owsley,  27  Fed.  R. 
14  How.  U,  S.  193.  100. 

3  Adams  v.  Howard,  22  Fed.  R.  656.  "  Crandall  v.  Piano  Mfg.  Co.,  24  Fed. 

4  Hyatt  V.  Ingalls,  49  N.  Y.  Super.  Ct.  R.  738. 

375  ;  on  appeal,  124  N.  Y.  93.  n  Pope  Mfg.  Co.  v.  Owsley,  siqwa. 

°  Marsh  v.  Harris  Mfg.  Co.,  63Wis.  276. 


{a)  This   rule    does    not   prevent   the     mination.     H,   Tibbe  &  Son  Mfg.  Co.  v, 
licensee  from  questioning  the  validity  of     Heineken,  37  Fed.  R.  686. 
the  patent   after  the   license  expires,  in  {b)  See  Adee    v.  Thomas,    41  Fed.    R. 

vindication   of  acts   done   since   its    ter-     342 ;  Id.  346. 

34 


530  THE  LAW  OF  PERSONAL  PEOPERTY. 

claimant's  cost.i  Where,  however,  the  alleged  licensee  claims, 
under  a  written  instrument,  he  will  be  limited  to  a  reasonable 
construction  of  the  words.  Thus,  it  has  been  held  that  a  certificate 
that  one  oivns  a  third  of  a  patent  does  not  necessarily  constitute 
an  assignment. 

Rule  5.  A  patentee  cannot  forfeit  the  license  for  non-perform- 
ance bv  the  licensee  of  his  contract,  unless  he  reserves  a  condition 
giving  him  the  power  to  do  so.  Without  that  he  will  be  left  to 
his  action  for  the  amount  of  the  royalty  or  rent.^  Even  a  provision 
that  a  license  shall  be  void  if  royalties  are  not  paid,  does  not,  of 
itself,  make  it  void;  but  an  action  must  be  brought  to  have  it 
annulled.  Such  a  provision  is,  in  general,  intended  as  a  security 
for  payment.^ 

Rule  6.  A  license  for  the  exclusive  use  of  a  machine  does 
not  continue  longer  than  the  life  of  the  patent  then  in  existence.* 
While  it  continues,  it  is  irrevocable  by  the  licensor,  if  given  for  a 
valuable  consideration,  unless  a  right  to  revoke  is  reserved.^ 

Rule  7.  A  distinction  must  be  taken  between  a  right  to  make 
and  sell  a  patented  article  and  the  right  simply  to  sell.  The  former 
necessarily  includes  a  right  to  use,  while  the  latter  does  not.^ 

A  patent  being  an  incorporeal  right,  may,  as  has  already  been 
shown,  be  assigned  in  whole  or  in  parr,  or  may  be  leased  or  licensed 
for  a  rent  or  royalty.  So  a  single  patented  tnachine  may  be  sold  or 
leased,  with  the  right  of  the  patentee  included,  so  that  the  lessee 
or  purchaser  may  use  or  sell  it  in  turn,  free  from  any  claim  of  the 
patentee  ;  or  may  pay  a  royalty.  To  use  a  single  machine  con- 
structed according  to  the  patent,  is  an  infringement,  unless  the 
patentee  consent.  This  topic  must  be  distinguished  from  the  ques- 
tion of  property  in  the  product  of  the  machine,  for  to  this  the 
right  of  the  patentee  does  not,  in  general,  attach.  For  example, 
a  patentee  invents  a  new  and  useful  method  of  planing  boards. 
The  machine  to  which  the  invention  applies,  may  be  sold,  with 
the  patentee's  right  included.  The  planed  boards,  the  product  of 
the  machine,  are  not  embraced  within  the  terms  of  an  "  exclusive 
right  to  make,  use,  and  sell  the  machines  "  within  a  specified 
territory  only,  and  an  assignee  of  such  a  right  may  sell,  out  of  that 
territory,  the  plank,  boards,  etc..  the  product  of  the  machine.'  So 
the  purchaser  of  a  patented  machine  has  a  right  to  repair  it  when 

1  Jencks  v.  Langdon  Mills,  27  Fed.  R.  *  Paper  Bag,  &c.  Co.  v.  Nixon,  105 
622.  U.  S.  766. 

2  Consolidated,   &c.    Co.    v.    Wolf,   28  5  jjelly  v.  Porter,  8  Sawj'.  482. 
Fed.  R.  814.                                                             6  ingalls  v.  Tice,  14  Fed.  E.  297. 

3  Dare  v.  Boylston.  18  Blatcli.  548;  '^  Simpson  v.  Wilson,  4  How.  U.  S. 
Adams  v.  Meyrose,  2  McCrary,  360.  709  ;  ante,  p.  525. 


TITLE    BY    OKIGINAL   ACQUISITION.  531 

necessary,  though  the  repair  consists  in  a  replacement  of  an 
essential  part  of  the  combination  patented.^ 

(3)  Infringement.  — This  technical  expression  means  the  act 
of  violating-  the  rights  of  the  patentee,  existing  by  reason  of  the 
patent.  Such  an  act  of  violation  confers  upon  him  a  cause  of 
action,  for  which  the  appropriate  remedies  will  be  considered  in  a 
subsequent  part  of  this  work.  The  present  purpose  is  to  discuss 
the  nature  of  an  infringement. 

As  an  infringement  is  a  violation  of  a  right  of  property,  it  may 
exist  independent  of  motive.  One  may  infringe,  though  ignorant  of 
the  existence  of  the  patent.^  The  purpose  of  the  alleged  wrong-doer 
may,  however,  be  material,  —  as,  for  example,  where  a  patented 
machine  was  made  for  philosophical  experiments,  or  to  ascertain 
whether  it  would  produce  the  effect  ascribed  to  it ;  under  such 
circumstances,  there  may  be  no  infringement.^  Still,  in  a  recent 
English  case,  it  was  decided  that  where  a  patented  invention  was 
made  use  of  for  the  purpose  of  experiment  and  instruction,  the 
use  constituted  an  infringement.'* 

Where  a  machine  is  patented,  a  sale  of  the  goods  manufactured 
by  it  is  not  necessarily  an  infringement,  though  it  would  be  if 
the  person  selling  the  article  were  connected  with  the  use  of  the 
machine.^  To  make  the  very  thing  patented  without  the  consent 
of  the  patentee  is,  in  general,  an  infringement ;  though  if  the  maker 
had  no  knowledge  of  its  having  been  patented,  only  nominal 
damages  w^ould   be  given.*^ 

A  rule  for  determining  an  infringement  is  this :  if  there  be 
an  invention  which  is  an  improvement  in  the  "  principle  "  of  a 
machine  patented,  there  is  no  infringement  in  making  and  using 
the  improvement ;  if  it  be  an  improvement  in  the  "  form,"  as 
distinguished  from  the  principle,  there  is  a  violation."  The  word 
"  principle,"  in  the  above  rule,  so  far  as  it  refers  to  a  macliine, 
means  that  which  applies,  modifies,  or  combines  mechanical 
powers  to  produce  a  certain  result."  Colorable  differences  or 
slight  variations  do  not  exempt  a  person  from  the  charge  of 
infringement.^  It  is  often  a  matter  of  judgment  to  the  eye 
whether  there  is  a  colorable  imitation  or  not.**^ 

1  Wilson  V.    Simpson,    9   How.   U.  S.  5  goyfj  j,,  M'Alpin,  3  McLean,  427. 

109.  6  Bryce  v.  Dorr,  3  McLean,  582. 

^  Parker  u.  Hulme,  1  Fisher's  Pat.  Cas.  "^  Brooks  v.  Bicknell,  3  McLean,  250. 

44.  ^  Smith  v.  Pearce,  2  McLean,  176. 

3  Whittemore  v.  Cutter,  1   Gall.   429  ;  »  Byam  v.  Eddy,  24  Vt.  666. 
Poppenhusen   v,    Falke,    2   Fisher's    Pat.  i"  Sayles  v.  Chicago.  &c.  R'way  Co.,  4 
Cas.  181.  Fisher's  Pat.  Cas.  584. 

4  United   Telephone  Co.    v.    Sharpies, 
L.  R.  29  Ch.  D.  164. 


532  THE  LAW  OF  PERSONAL  PEOPERTY. 

To  constitute  an  infringement  of  a  patent  for  a  design,  it  is  not 
necessary  that  the  appearance  sliould  be  the  same  to  the  eye  of 
an  expert.  The  test  of  a  patent  for  a  design  is  the  eye  of  an 
ordinary  observer,  giving  such  attention  as  a  purchaser  usually 
gives.  The  true  test  of  identity  of  design  must  be  sameness  of 
appearance.^  (a) 

The  question  of  the  infringement  of  a  patent  depends  largely 
upon  the  specification.  In  a  patent  for  a  machine  the  specifica- 
tion must  point  out  the  mode  of  accomplishing  the  result.  If  that 
be  so  drawn  that  the  same  result  can  be  accomplished  by  some 
mode  substantially  different,  there  will  be  no  infringement.  It 
is  plain  that  great  skill  will  be  necessary  in  complicated  cases  in 
drawing  the  specification ;  otherwise  the  inventor  may  lose  the 
benefit  of  a  patent,  to  which  he  is  really  entitled,  by  want  of  skill 
in  presenting  his  case  to  the  Patent  Office. 

This  nicety  is  not  so  essential  in  a  process,  the  effect  or  result 
being  produced  by  chemical  action.  Then  the  patent  may  be  for 
the  art  or  method,  and  the  inventor  must  show  how  the  process 
may  be  adapted  to  practical  use.  In  showing  that,  the  inventor 
may  describe  mechanical  means  for  applying  peculiarly  shaped 
vessels  or  other  receptacles  for  containing  any  of  the  ingredients 
used  in  his  process  or  art.  But  these  constitute  no  part  of  his 
invention.^  But  even  in  this  class  of  cases,  where  the  chemical 
action  is  described  to  consist  of  certain  combinations  of  sub- 
stances, the  patent  would  not  cover  the  same  result  produced  by 
different  combinations.  A  well  known  instance  is  where  the  speci- 
fication described  a  process  for  the  manufacture  of  steel  by  the 
"  use  of  the  carburet  of  manganese  in  any  process  whereby  iron  is 
converted  into  cast-steel,"  and  it  was  subsequently  discovered  that 
if  the  "  oxide  of  manganese  "  and  coal-tar  were  put  into  the  melting- 
pot  with  the  iron,  cast-steel  would  be  produced,  of  equal  quality. 
It  was  held  that  the  specification  did  not  embrace  the  new  dis- 
covery, though  experts  testified  that  the  two  substances  became 
one  in  the  melting-pot.^ 

1  Gorham  Co.  v.  White,  14  Wall.  511;  did  not  succeed  in  doing  it,  since  it  was 

Droj'fus  V.  Schneider,  25  Fed.  R.  481.  impossible  to  say  that  oxide  of  manganese 

-  Piper  u.  Brown,  4  Fisher's  Pat.  Cas.  and  coal-tar  became  the  "carburet,"  before 

175.  combining  with  the  iron.     And  again,  if 

3  There  was  a  great  diversity  of  opinion  this  could  be  said,  the  "specification  "  of 

among  the  judges  as  to  the  theory  of  this  the  compound  did  not  embrace  the  simple 

decision.     The  correct  view  would  seem  to  substances  of  which   the   compound  was 

be,  that  as  the  burden  of  proof  is  upon  the  formed.     Unwin  v.  Heath,  5  H.  of  L.  Cas. 

patentee  to  establish  an  infringement,  he  505. 


(a)  Smith  v.  Whitman  Saddle  Co.,  148  U.  S.  674;  Redway  v.  Ohio  Store  Co.,  33 
Fed.  R.  582. 


TITLE   BY    ORIGINAL   ACQUISITION.  533 

111  all  cases  of  infringement,  the  great  line  of  inquiry  is  whether 
there  is  a  material  difterence  between  the  patent,  as  properly  con- 
strued, and  the  alleged  infringement.  Materiality  may  disclose 
itself  in  a  variety  of  ways.  Sometimes  a  material  feature  is  dis- 
pensed with  ;  1  or  an  element  is  omitted  which  has  a  function 
of  its  own ;  2  or  there  is  a  difference  in  form,  mode  of  operation, 
and  result; 3  or,  it  may  be,  a  difference  of  combinations  simply, 
while  the  result  is  the  same.*  In  all  these  cases  there  is  no 
infringement. 

There  is  no  infringement  in  a  patent  for  a  process  where  the 
discovery  of  the  patentee  is  used  by  another  for  a  wholly  different 
purpose,  not  involving  commercial  profit.  An  example  is,  the 
case  where  hydrate  of  lime  was  patented  for  the  purpose  of  pre- 
cipitating substances  from  sewage  water  for  agricultural  purposes, 
and  the  alleged  infringer  used  the  same  method  for  purifying  and 
deodorizing  the  water.-^ 

When  a  process  of  manufacturing  is  patented,  the  result  of  the 
process  is  not  included,  and  an  infringement  cannot  be  jn-oved  by 
showing  that  the  defendant  has  produced  the  same  thing.  It 
must  further  appear  that  he  has  produced  it  by  the  same  method.^ 
If  a  patent  be  obtained  for  a  process  by  means  of  the  use  of  a 
chemical  substance  artificially  prepared,  it  is  not  infringed  by  the 
use  of  a  natural  substance  to  accomplish  the  same  result,"  con- 
taining among  its  constituents  that  which  is  described  in  the 
patent." 

As  a  chemical  product  may  be  patented,  as  well  as  a  process, 
the  introduction  of  it  for  sale  into  the  country,  though  made 
abroad  is  an  infringement.^  The  same  rule  is  applied  inEngland 
when  the  foreign  article  is  brought  into  the  country  only  for  trans- 
shipment to  another  country ,9  but  the  Custom  House  agents  of 
the  importers  were  not,  under  the  circumstances  of  the  case,  treated 
as  infringers.io  The  mere  possession  of  infringing  machines  is 
in  itself  an  infringement.  It  is  no  answer  to  this  view,  that  the 
infringers  have  taken  out  the  infringing  elements,  and  keep  the 

1  Yale  Lock  Mfg.  Co.  v.  Sargent,  117  specification,  as  construed  by  the  court, 
U.  S.  373  ;  Brown  v.  Davis,  116  U.  S.  237.  called  for  hydrated   oxides  of  iron  artifi- 

2  Tobey  Furniture  Co.  v.  Colby,  26  Fed.  cially  prepared,  while  the  defendant  used 
-"•  ^^^-  "  bog-ochre,"  a  natural  product  containing 

3  Field  V.  De  Comeau,  116  U.  S.  187.  hydrated  oxides. 

4  Buzzell  V.  Andrews,  25  Fed.  E.  822  ;  "  s  y^^^  Heyden  v.  Neustadt,  L.  R.  14 
as  to  materiality,  see  also  28  Fed.  R.  102.  Ch.  D.  230. 

5  Higgs  V.  Goodwin,  Ell.  Bl.  &  Ell.  9  Nobel's  Exp.  Co.  v.  Jones,  L.  R.  17 
529 ;  s.  c.    27  L.  J.  Q.  B.  421.  Ch.  D.  721. 

6  Palmer  v.  Wagstaff,  9  Exch.  494.  w  Nobel's  Exp.  Co.  v.  Jones,  L.  R.  8 
'  Hills  V.  Liverpool  United  Gas-Light     App.  Cas.  5. 

Co.,  9  Jur.   N.  s.  140.      In  this  case,  the 


534  THE  LAW  OF  PERSONAL  PROPERTY. 

separate  parts  stored,  since,  though  dismantled  to-day,  the  machines 
might  be  re-instated  to-morrow.^ 

Looking  now  at  the  cases  Avhere  infringement  has  been  declared, 
the  doctrine  of  "equivalents"  becomes  important.  It  is  plain,  on 
a  moment's  reflection,  that  it  would  be  very  difficult  for  a  patentee 
to  exhaust  in  his  specification  all  similar  modes  of  producing  a 
particular  result.  It  would  lead  to  needless  prolixity,  and,  in 
most  cases,  would  be  productive  of  no  beneficial  result.  A  recent 
case  is  highly  illustrative.  The  patent  called  for  the  use  of  smv- 
dust.  The  infringer  used  auger  borings  of  the  same  general 
character  as  saw-dust.  Though  the  two  substances  are  not  identi- 
cal, thev  were  declared  to  be  equivalent.^  It  is  not  easy  to  frame 
a  definition  of  mechanical  equivalents.  Only  general  terms  can 
be  used,  and  resort  must  be  had  to  decided  cases.  A  broad  state- 
ment is,  that  an  "  equivalent "  produces  the  result  in  substantially 
the  same  way  as  that  described  in  tlie  specification.  The  material 
used  may  be  different  in  the  two  cases,  and  there  still  be  an  equiva- 
lent. To  hold  that  a  "  mechanical  equivalent "  is  used,  is  prac- 
tically a  mode  of  stating  that  the  matter  in  question  has  no 
patentable  novelty,  which  is  a  fatal  objection  to  the  validity  of 
a  patent. 

V.  Remedies.  —  As  the  power  to  grant  patents  is  solely  vested 
in  Congress  by  the  provisions  of  the  United  States  Constitution, 
the  jurisdiction  over  them  is,  for  the  most  part,  vested  in  the 
Federal  Courts,  in  so  far  as  such  jurisdiction  is  granted  by  the 
legislation  of  Congress.  The  jurisdiction  depends,  not  upon 
the  residence  of  the  parties,  but  upon  the  subject-matter. ^  Tiie 
statutes  of  Congress  must  be  consulted  in  order  to  determine 
how  much  jurisdiction  is  conferred,  and  in  what  particular  courts 
it  is  vested. 

The  power  as  now  conferred  upon  the  Circuit  Court  of  the 
United  States,  as  a  court  of  equity,  is  a  general  equity  power, 
and  carries  with  it  all  the  incidents  belonging  to  that  species  of 
jurisdiction.*  Thus,  it  has  jurisdiction  for  the  purpose  of  settling 
all  conflicting  claims  to  the  patent.^  On  the  question  of  infringe- 
ment, the  jurisdiction  of  the  Federal  Court  is  exclusive.^ 

The  State  courts  may  entertain  cases   where  there  is  no  direct 

1  United  Telephone  Co.  v.  London,  &c.  ^  Gibson  v.  Wood  worth,  8  Paige,  132. 
Co.,  L.  R.  26  Ch.  D.  766,  776;   Bacon,  6  Continental  Store,  &c.  Co.  v.  Clark, 
V.  C.     See  also  Adair  v.  Young,  L.  R.  12  100  N.   Y.   365  ;    Dudley  v.    Mayhew,   3 
Ch.  D.  13.  N.   Y.  9  ;  Smith  v.  McClelland,  11   Bush 

2  Hobbie  v.  Smith,  27  Fed.  R.  656.  (Ky.),  523  ;  De  AVitt  v.  Elmira,  &c.  Mfg. 
8    Allen  V.  Blunt,  1  Blatch.  480.                Co.,  66  N.  Y.  459. 

*  Potter  t).  Dixon,  5  Blatch.  160;  Ken- 
dall V.  Winsor,  6  R.  L  453. 


TITLE    BY    ORIGINAL   ACQUISITION.  535 

adjudication  sought  upon  the  validity  of  the  patent,  but  the  matter 
comes  up  collaterally.  Instances  are  as  follows  ;  An  action  for 
damages,  resulting  from  alleged  fraudulent  representations  upon 
a  sale  of  a  patent,  and  to  inquire  whether  the  patent  was  really 
what  it  was  represented  to  be.^  So  a  State  court  may  entertain  a 
bill  to  compel  an  assignment  of  a  patent,  its  validity  not  being  in 
question.^  (a) 

The  legal  proceedings  in  patent  cases  are  of  two  general  classes. 
(1)  Cases  in  which  the  patent  is  attacked,  and  sought  to  be  over- 
thrown.    (2)   Those  in  which  a  remedy  is  sought  by  the  patentee. 

(1)  Cases  in  ivhich  the  pateyit  is  attacked.  —  1.  Proceeclhcgs  hy 
the  United  States.  It  is  a  general  principle  of  the  common  law 
that  letters  patent  granted  by  the  king  (like  the  grant  of  an  indi- 
vidual) may,  on  his  application,  be  set  aside  in  the  courts  for 
fraud,  mistake,  and  other  causes  going  to  show  want  of  intelli- 
gent consent.  It  has  been  common  from  early  times  to  resort  to 
a  writ  called  "  scire  facias,"  from  its  original  Latin  form,  for  this 
purpose.  At  present,  this  proceeding  is  used  in  the  common  law 
courts  as  distinguished  from  equity.  There  is  reason  to  believe 
that  in  its  origin  it  could  be  adopted  as  an  equitable  remedy. 
There  is  an  equitable  clement  in  it,  since  it  is  a  mode  of  revoking 
a  grant  for  fraud,  mistake,  and  other  like  ground  which  admits 
that  the  grant  is  in  its  form  valid,  but  was  in  fact  obtained 
against  right  and  good  conscience.^ 

Still,  in  England  scire  facias  is  considered  to  be  the  correct 
remedy  as  instituted  in  a  court  of  law,  not  only  in  the  case  of 
grants  by  the  king  of  land,  but  also  of  patents  for  inventions. 
Accordingly,  if  a  person  obtains,  by  fraud,  priority  in  a  patent  for 
an  invention,  the  true  inventor  has  no  remedy,  except  through  a 
scire  facias.^     The  Attorney-General  has  a  discretion  in  this  class 

1  Hunt  V.  Hoover,  24  la.  231.  contrasted  with   the  same   proceeding  in 

2  Binney  v.  Annan,  107  Mass.  94.  equity.     The  case  in  the  13  Edw.  III.  was 

3  A  very  early  case  of  a  scire  facias  re-  brought  to  repeal  letters  patent  granting 
turnable  in  the  Court  of  Chancery  is  found  land  claimed  to  have  been  forfeited  to  the 
in  the  Year  Book  of  13  Edw.  III.  (a.  d.  king.  The  object  of  the  proceeding  was 
133S-1339).  Pike's  translation,  pp.  96-100.  to  compel  the  king's  grantee  to  show  cause 
There  is  also  a  valuable  discussion  of  the  why  the  land  should  not  be  seized  into 
topic  of  scire  facias  as  an  early  equitable  the  king's  hand  for  the  purpose  of  being 
remedy  in  the  introduction,  pp.  101-111.  restored  to  the  former  owner. 

In  the  Year  Book  10  Henry  IV.  5,  pi.  17,  *  Ex  parte  Bailey,  L.  R.  8  Ch.  App. 

and  10  Id.  7,  pi.  5,  scire  facias  in  law  is     60,  63. 


(«)  An  action  to  recover    royalties  is  of  a  license,  and  not  the  validity  of  the 

within  the  jurisdiction  of  the  State  courts,  patent,  is  cognizable  by  a  State  tribunal. 

Hyatt  V.  Ingalls,   124  N.  Y.  93.     So  an  Waterman  r.  Shipman,   130  N.  Y.  301  ; 

action  for  au  injunction,  involving  merely  Mayer  i'.  Hardy,  127  N.  Y.  125. 
the  question  of  the  existence  or  meaning 


536  THE   LAW    OF    PERSONAL    PROPERTY. 

of  cases,  and  the  court  will  not,  in  general,  control  his  discretion.^ 
It  is,  however,  the  duty  of  the  government  to  protect  the  public 
from  illegal  monopolies.^ 

It  has  not  been  distinctly  adjudicated  by  modern  decisions  in 
England  that  a  bill  in  equity  will  not  lie,  but  rather  that  scire 
facias  in  the  Queen's  Bench  is  a  proper  remedy,  and  that  this 
court  may  dispose  of  the  whole  question,  ordering  the  patent  to 
be  cancelled  and  annulled;  and  that  though  the  record  of  the 
patent  must  be  sent  back  to  the  Court  of  Chancery  to  be  can- 
celled, yet  that  the  act  of  cancellation  is  formal  and  ministerial, 
and  the  Court  of  Chancery  has  no  power  to  stay  the  execution  of 
the  judgment.^ 

The  general  question  herein  considered  was  not  disposed  of  in 
the  United  States  until  the  year  1888.  It  was  then  decided  in  a 
case  of  great  importance  that  a  bill  in  equity  issued  by  the  United 
States  was  an  appropriate  method  of  presenting  to  the  court  the 
question  whether  a  patent  should  not  be  revoked  because  it  had 
been  obtained  by  fraud,  accident,  or  mistake.  It  was  declared 
that  this  method  is  sustained  by  precedents  in  the  High  Court  of 
Chancery  in  England,  as  well  as  in  other  courts  there.*  The 
remedy  in  this  country  is  by  proceedings  on  the  part  of  the  United 
States  before  the  judicial  department  of  the  government.^  The 
bill  in  the  case  cited  was  declared  to  be  well  brought,  and  the 
allegations  therein  sufficient,  if  sustained,  to  authorize  a  decree 
setting  aside  the  patent  as  null  and  void.^ 

2,  Proceedings  hy  an  individual  to  vacate  a  patent  under  the 
Revised  Statutes.  Section  4918  of  the  Revised  Statutes  pro- 
vides a  remedy  whereby  one  patentee,  or  other  person  having 
an  interest,  claiming  an  interference,  can  proceed  against  another 
in  a  court  of  equity  to  have  the  alleged  interfering  patent  declared 
void.  Under  this  section  either  or  both  patents  may  be  declared 
void."  An  adjudication  under  this  section  only  affects  the  rights 
of  parties  to  the  suit,  and  those  deriving  title  under  them  subse- 
quent to  the  adjudication.^ 

(2)  Remedies  hy  the  patentee.  —  These  are  of  two  general 
kinds :    1.   Actions  in  a  court  of  law.     2.    Suits  in  equity. 

^  Queen  v.  Prosser,  11  Beav.  306.    Aff'd  &  47  Vict.  c.  57,  §  26  (1883).     See  In  re 

by   Lord   Cottenham,   Lord   Chancellor  Haddan's  Patent,  54  L.  J.  (Ch. )  126. 
(p.  318).  4  Attorney-General  v.  Vernon,  1  Vern. 

2  Id.  317.  277. 

3  Bynner  v.  The  Queen,  9  Q.  B.  523  ;  5  United  States  v.  Bell  Telephone  Co., 
Queen  v.  Eastern  Archipelago  Co.,  4  De  G.  128  U.  S.  315. 

M.  &  G.  199.     There  may  now  be  in  Eng-  6  M. 

land,  by  statute,  a  proceeding  (based  on  a  ^  Foster  v.  Lindsay,  3  Dill.  126. 

petition)    to    revoke  letters    patent :    46  »  §  4918. 


TITLE    BY    OEIGINAL    ACQUISITION.  537 

1.  Actions  in  a  court  of  laiv.  The  regular  remedy  for  an  in- 
fringement is  an  action  at  law  for  the  damages  sustained.  Where 
such  an  action  will  give  complete  and  adequate  relief,  it  should,  on 
general  principles,  be  resorted  to  rather  than  a  suit  in  equity.  A 
large  portion  of  the  litigation  in  patent  cases  is  in  equity,  the 
object  being  to  obtain  an  injunction  against  the  infringer,  and  an 
accounting  for  the  profits.  Some  preliminary  observations  may 
here  be  made  applicable  to  proceedings  in  either  tribunal. 

All  that  class  of  objections  to  the  suit  which  go  to  attack  the 
right  of  the  patentee,  are  equally  available  to  the  defendant,  which- 
ever form  the  case  may  assume.  In  a  suit  for  infringement  the 
patent  is  itself  presumptive  evidence  of  the  patentee's  right  as 
against  an  infringer.  The  burden  of  proof  is  thus  cast  upon  the 
defendant  to  show  some  ground  on  which  the  patentee's  claim 
should  be  rejected.  These  grounds  may  be  grouped  together. 
The  defences  which  may  be  urged  to  a  patent  consist  of  two 
general  classes :  first,  denial  (technically  called  the  "  general 
issue "),  which  asserts  that  the  patent  has  no  legal  existence ; 
and,  second,  special  defences  which,  logically  considered,  admit 
the  existence  of  the  patent,  but  claim  that  under  the  circum- 
stances it  ought  not  to  be  enforced  against  the  defendant.  This 
last  subdivision  introduces  the  subject  of  special  pleading,  which 
requires  this  class  of  defences  to  be  stated  in  the  pleading  of  the 
defendant. 

This  technical  rule  is  dispensed  with  by  the  Revised  Statutes  of 
the  United  States  ^  in  certain  specified  cases.  In  these  cases  the 
defendant  may  simply  deny  the  right  of  the  plaintiff,  at  the  same 
time  giving  him  notice  in  writing,  thirty  days  before  the  trial, 
tliat  he  will  make  one  of  the  specified  defences.  They  are 
these :  — 

(1)  That  for  the  purpose  of  deceiving  the  public  the  specifica- 
tion was  made  to  contain  less  than  the  whole  truth,  or  more  than 
was  necessary  to  produce  the  desired  effect. 

(2)  That  the  plaintiff  had  surreptitiously  or  unjustly  obtained 
the  patent  for  that  which  was  in  fact  invented  by  another,  who 
was  using  reasonable  diligence  in  adapting  and  perfecting  it. 

(3)  That  it  had  been  patented  or  described  in  some  printed  pub- 
lication prior  to  the  plaintiff's  supposed  invention  or  discovery. 

(4)  That  the  plaintiff  was  not  the  original  and  first  inventor 
or  discoverer  of  any  material  and  substantial  part  of  the  thing 
patented. 

(5)  That  it  had  been  in  public  use  or  on  sale  in  this  country 
for  more  than  two  years  before  the  application  for  the  patent,  or 

1  U.  S.  Rev.  St.  §  4920. 


538  THS  LAW  OF  PERSONAL  PROPERTY. 

had  beerx  abandoned  to  the  public.  The  last,  though  classed  in 
the  statute  as  one  defence,  really  consists  of  two,  since  there  may 
be  an  abandonment  to  the  public  without  reference  to  the  lapse 
of  two  years.  This  rule  applies  to  cases  both  in  law  and  equity. 
The  section  of  the  statute  sets  forth  in  detail  the  necessary  con- 
tents of  the  notice. 

There  may  be  other  special  defences  not  enumerated  in  §  4920, 
—  such  as,  that  the  invention  was  first  patented  in  a  foreign  coun- 
try, and  that  the  time  limited  in  the  foreign  patent  has  expired;  ^ 
or  that  the  patentee  had  not  attached  to  the  patented  article  the 
word  "  patented,"  with  the  day  and  year  when  the  patent  was 
granted; 2  or  that  the  plaintiff  had  failed  to  pay  the  prescribed 
fees,  under  §  4897 ;  or  that  the  defendant  had  the  right  to  use 
and  vend  the  specific  article.,  under  §  4899,  though  the  patent  be 
otherwise  valid  as  to  infringers.  So  it  may  be  made  to  appear 
that  the  alleged  infringement  is  itself  a  new  and  independent 
invention,  and  so  patentable  by  the  defendant.  The  doctrine  of 
estoppel  may  be  used  as  a  defence,  as  where  the  conduct  of  the 
patentee  is  a  representation  to  the  defendant  on  which  he  acts, 
that  he  (the  defendant)  is  not  infringing.^  Several  of  these  spe- 
cial defences  require  to  be  considered  more  in  detail. 

Prior  public  use  for  two  years.  —  At  the  present  time  such  a  use 
as  this  is  fatal  to  the  claim  of  the  patentee,  even  though  he  be  the 
first  inventor,  and  the  prior  use  took  place  without  his  consent,  or 
even  knowledge.  The  only  thing  material  is  the  fact  that  the  inven- 
tion has  been  in  public  use  for  two  years.  The  burden  of  proof 
is  on  the  person  sued  for  infringement,  when  he  alleges  prior  use, 
to  establish  the  fact.* 

^  U.  S.  Rev.  St.  §  4887.  and  purchased,  notwithstanding  the  patent 

2  Id.  §  4900.  yet  that  the  patent  itself  should  not  thereby 

2  A  ease  in  which   estoppel   was  not  be  invalidated,  unless  such  purchase,  etc., 

maintained  is  Proctor  v.   Bennis,    L.   R.  had  been  for  more  than  two  years  prior  to 

36  Ch.  D.  740.  the  application.    The  construction  given  to 

*  Cartrell  v.  Wallick,  117  U.  S.  689.  these  last  stated  words  was  that  the  patent 

The  point  whether  a  prior  use  of  two  was  invalid  by  more  than  two  years'  use, 

years  is  fatal,  without  reference  to  the  in-  whether  the  inventor  knew  or  consented 

ventor's  knowledge  or  consent,  was  thor-  to  the  use  or  not.     Andrews  v.  Hovey,  123 

oughly  considered  by  the  Supreme  Court  U.  S.  267  (the  driven  well  case).     On   a 

of  the   United   States   under  the   second  motion  for  a  rehearing,  the  court  reiterated 

clause    of    the     seventh    section    of  the  this  decision,  with  an  exhaustive  examina- 

act  of  March  3,   1839,   (5  Stat.  L.  354).  tion   and    discussion    of   prior    decisions. 

That   clause,  in  connection  with  a  prior  Andrews  v.  Hovey,  124  U.  S.  694  (1888). 

clause,   in  substance  provided  that  while  Under  the  existing  law  this  policy  of  the 

any  person  who   had   purchased   or  con-  act  of  1839  appears  to  be  retained,  U.  S. 

stnicted  a  newly-invented   machine,  etc.,  Rev.  St.  §§  4886,  4899,  and  see  remarks  of 

before  the  application  of  the  inventor,  etc.,  the  court  at  the  foot  of  page  274  in  An- 

for  a  patent,  should  have  the  right  to  use  drews   v.    Hovey,   supra.      The  result  is, 

andvendthespecificmachine,  etc.,  somade  that  a  public  use,  etc.,  of  more  than  two 


TITLE    BY    ORIGINAL   ACQUISITION.  539 

Abandonment.  —  Tliis  is  a  question  largely  of  intention.  It  par- 
takes of  the  nature  of  prior  use,  but  is  not  identical  with  it.  In 
the  present  state  of  the  law,  prior  public  use  is  an  arbitrary  de- 
fence, depending  upon  a  statutory  period  of  two  years.  Abandon- 
ment assumes  an  intention  to  relinquish  the  right  to  the  invention. 
It  is  treated  as  a  matter  of  fact,  and  in  a  common-law  action  must 
be  submitted  to  a  jury. 

An  abandonment  may  be  established,  even  though  two  years 
have  not  expired.  This  inference  does  not  necessarily  follow  from 
the  invention  being  in  public  use  or  on  sale  for  less  than  two  years, 
but  after  the  lapse  of  two  years  such  public  use  is,  by  force  of 
the  statute,  conclusive  evidence  of  abandonment,  and  the  patent 
is  void.^ 

Want  of  novelty.  —  This  means  that  the  patentee  has  been  an- 
ticipated by  another.  Such  a  defence  should  be  clearly  estab- 
lished.2  If  it  be  claimed  that  the  patentee  derived  his  conception 
from  another,  it  should  be  made  by  the  claimant  to  appear  that 
the  prior  alleged  inventor  had  a  conception  of  the  invention. 
The  burden  of  proof  is  on  him.^  A  large  part  of  all  the  litigation 
concerning  patents  turns  upon  the  question  of  novelty. 

It  is  not  proposed  in  the  further  discussion  of  this  subject  to 
treat  of  remedies  in  detail. 

2.  Suits  in  equity.  An  action  in  equity  is  a  leading  remedy, 
in  order  that  the  patentee  may  obtain  an  injunction  against  the 
infringer,  and  at  the  same  time  an  accounting  for  past  profits 
realized  by  him.  An  injunction  must  be  applied  for  during  the 
life  of  the  patent.  Still,  it  can  be  obtained  though  onlv  a  few 
days  remain.4  In  one  of  the  cases  cited,  only  three  weeks 
remained.  The  fact  that  the  patent  expires  during  the  suit  does 
not  take  away  the  jurisdiction  of  the  court.^  The  court,  how- 
ever, will  not  entertain  the  suit  simply  for  an  accounting  of  the 
profits,  as  the  remedy  at  law  would  be  sufficient,  —  viz.,  dam- 
ages. In  general,  a  patentee  would  have  an  election  to  sue  at 
law  for  his  "  royalty  "  or  patent  fee  charged  by  him  to  one  using 
his  invention  without  right,  or  to  sue  in  equity  for  past  profits 
and  an  injunction  against  future  use.^  The  special  rules  gov- 
erning the  question  whether  a  preliminary  injunction  should  be 

years  of  an  invention  or  discovery  prior  to  2  Yale  Lock  Mfg.  Co.  v.  Berkshire  Nat. 

the  application  for  a  patent  is  a  perfect  Bank,  26  Fed.  R.  104. 
defence   to   an    action    for   infringement,  3  Duffy  v.  Reynolds,  24  Fed.  E.  855. 

though  such  public  use,  etc.,  took  place  *  Dick  r.  Struthers,  25  Fed.  R.   103  ; 

without    the     inventor's    or    discoverer's  Adams'y.  Bridgewater  Iron  Co.,  26  Id.  324. 
knowledge  or  consent.    Ante,  pp.  510,  511.  5  Brooks  v.  Miller,  28  Fed.  R.  615. 

1  Elizabeth  v.  Pavement  Co.,  97  U".  S.  e  Bragg  v.  City  of  Stockton,  27  Fed.  R. 

126,  134.  509. 


540  THE  LAW  OF  PERSONAL  PKOPERTY. 

crranted  will  be  found  in  the  books  upon  equity  procedure  and 

practice. 

The  question  of  damages  is  of  high  importance,  tor  in  many 
instances  the  whole  value^of  the  patent  to  the  patentee  consists  in 
the  damaires  recovered.  The  true  measure  of  damages  is  thus 
of  prime  consequence.  If  the  patentee  receives  a  fixed  fee  from 
others  for  the  use  of  the  invention,  this  will  in  general  be  the  true 
measure  of  damages  against  an  infringer ;  i  but  if  he  issues  no 
licenses,  special  circumstances  may  then  control.  He  may  be 
deprived  of  profits  by  the  infringer's  acts  so  as  to  be  compelled  to 
lower  his  prices.  This  deprivation  may  be  the  true  measure  of 
damages.2  Sometimes  he  will  only  recover  nominal  damages,  as 
where'^it  is  not  clear  that  the  injury  is  attributable  to  the  parti- 
cular patent  in  question,^  or  where  damages  should  be  apportioned 
and  he  has  not  shown  the  true  basis  for  apportionment.*  The 
burden  of  proof  is,  in  other  words,  on  the  patentee  to  establish  the 
damages,  and  if  he  fails  to  do  this,  the  amount  recovered  will  be 
nominal.^  It  is  not  any  objection  to  recovery  in  a  suit  in  equity, 
of  full  profits,  that  the  defendant  did  not  realize  that  amount  by 
his  wrongful  act.^ 

A  question  has  been  raised  whether  if  an  infringement  has 
taken  place  in  a  foreign  country,  and  the  infringing  machine  is 
brought  temporarily  into  this  country,  an  injunction  can  be  ob- 
tained while  the  machine  is  here.  It  is  held  in  England  in  the 
affirmative,  so  that  an  infringing  wheel  on  a  foreign  steamboat 
could  be  prevented  from  revolving  while  the  boat  w-as  in  British 
waters."     This  doctrine  has  not  been  followed  here. 

Section  III.  Title  to  Trade-marks  hy  Ajjjjropriation. — Fre- 
liminary.  —  This,  in  its  development,  is  a  subject  of  modern 
origin.  Still,  the  germ  of  it  is  found  in  the  early  law.  The  act 
of  counterfeiting  a  trade-mark  attracted  attention,  both  as  an 
injury  to  an  individual  who  had  originated  it,  and  as  a  fraud  upon 
the  unwary,  who  might  be  deceived,  and  be  led  to  the  purchase  of 
goods  which  otherwise  they  would  not  have  purchased.  The  act 
of  counterfeiting  was  thus  treated  both  civilly  and  criminally. 

The  earliest  decision  where  relief  was  granted  in  a  civil  action 

1  Graham  v.  Geneva,  &c.  Mfg.  Co.,  2i  Dobson  v.  Hartford  Carpet  Co.,  114  U.  S. 
Ferl.  E.  642.  439. 

2  Yale  Lock  Mfg.  Co.  v.  Sargent,  117  ^  Simpson  v.  Davis,  22  Blatcli.  113. 
U.  S.  536.  "  Caldwell  v.  Van  Vlissengen,  9  Hare, 

3  Moffitt  V.  Cavanagh,  27  Fed.  R.  415.  It  is  said  that  this  decision  was 
511.  offensive    to   the    Dutch  government,    to 

*  "Willimantic  Thread  Co.  v.  Clark  which  the  ship  belonged,  and  this  feeling 
Thread  Co.,  27  Fed.  R.  865.  led   to  the  enactment   of   15  &  16   Vict. 

5  Tuttle  -y.  Gaylord,   28  Fed.  R.   97  ;     c.  83,  §  26,  changing  the  rule. 


TITLE    BY    ORIGINAL    ACQUISITION.  541 

is  one  cited  by  Doderidge,  J.,  in  Southern  v.  How.^  The  judge 
(Doderidge)  said  that  in  "  22  Eliz.  an  action  upon  the  case  was 
brought  in  the  Common  Pleas  by  a  clothier,  that  whereas  he  h ad- 
gained  great  reputation  for  his  making  of  his  cloth,  by  reason 
whereof  he  had  great  utterance  to  his  great  benefit  and  profit, 
and  that  he  used  to  set  his  mark  to  his  cloth,  whereby  it  should 
be  known  to  be  his  cloth.  And  another  clothier,  perceiving  it, 
used  the  same  mark  to  his  ill-made  cloth,  on  purpose  to  deceive 
him ;  and  it  was  resolved  that  the  action  did  well  lie." 

This  case  does  not  give  us  the  breadth  of  the  present  law,  for 
the  right  of  action  does  not  now  depend  on  the  fact  that  the 
•counterfeiter  attaches  his  mark  to  inferior  goods,  as  will  be  shown 
hereafter.  It  is  valuable  simply  as  containing  the  germ  of  the 
existing  law. 

A  leading  case  before  the  Star  Chamber,  Oct.  12,  1632,  estab- 
lished the  criminality  of  counterfeiting  trade-marks.  The  pro- 
ceeding was  against  Thomas  Jupp  a  clothmaker  of  the  city  of 
London.2  Jupp  had  affixed  certain  iron  stamps  to  an  inferior 
article  of  baize,  counterfeiting  the  marks  of  the  famous  baize  of 
•Colchester,  and  had  sealed  his  goods  with  the  seals  of  that  town. 
The  inferior  baize  was  made  at  the  town  of  Booking.  An  expert 
could  distinguish  the  baize  made  at  these  towns,  but  an  ordinary 
purchaser  discerned  the  quality  of  the  baize  by  its  seal,  and 
bought  it  without  further  inquiry  than  the  view  of  the  seal. 

These  seals  had  a  griffin  or  a  dragon  on  the  one  side,  and  on 
the  other  side  three  crowns,  and  the  words,  D.  W.  S.,  Colchester 
Bay,  1571.  These  "  depictures  "  were  graven  in  iron,  and  Jupp 
was  detected  with  the  stamps  for  counterfeiting  them  in  his 
possession.  Another  peculiarity  in  the  case  was,  that  imperfect 
pieces  of  baize,  made  at  Colchester  itself,  were  regularly  marked 
by  cutting  off  a  piece  and  fixing  the  seal  at  the  "  angle."  Jupp 
tampered  with  this  class  of  goods  by  so  cutting  the  baize  as  to 
make  it  appear  to  be  sealed  regularly.  He  swore  that  he  had 
done  this  "  above  a  hundred  and  a  hundred  times  for  merchants." 
Jupp  was  sentenced  to  heavy  punishment,  to  mark  "the  detesta- 
tion of  the  court  of  this  form  of  fraud."  ^ 

1  Popham's  R.,  143,  144  (16  Jac.  I. ).        ships  that    some   exemplary   punishment 

2  Appendix  to  Vol.  3,  Rushworth's  might  be  inflicted  upon  the  said  Tho. 
Historical  Collections,  p.  102.  Jupp  ;  whereupon  their  Lordships,  taking 

^  As  this  is  the  first  known  decree  on  into   consideration   the   many    laws   that 

this  branch  of  the  subject,  it  may  not  be  have  been  provided  for  the  true  draping 

-out  of  place  to  quote  it  at  some  length,  of  the  wool  of  this  realm,  by  ordaining 

The  proceeding  had  been  instituted  by  the  the  searching,  measuring,  marking  [and] 

Attorney-General.     "  His  Majesty's  Attor-  affixing  seals  of  divers  places  where  they 

;iiey-General   humbly   prayed  their   Lord-  are  draped,    and  the  public  seals   of  the 


542 


THE  LAW  OF  PEESONAL  PEOPERTY. 


I.  TJie  nature  of  a  trade-mark,  and  the  ownership  of  it.  —  A 
trnde-mark  may  be  defined  to  be  some  word,  sign,  or  symbol, 
either  invented  or  appropriated,  and,  if  a  word,  having  an  arbi- 
trary meaning,  used  to  designate  the  ownership  or  origin  of  a 
product  or  other  thing  connected  with  trade  or  manufacture, 
and  to  distinguish  it  from  other  products  or  things  of  the  same 
general  nature. 

The  question  whether  one  who  makes  use  of  a  trade-mark  has  a 
property  in  it,  has  only  been  finally  determined  within  a  few 
years.  It  is  now  settled  that  there  is  a  property  in  a  trade-mark, 
and  that  the  jurisdiction  of  a  court  of  equity  to  protect  it  by  in- 
junction rests  upon  that  ground.^  The  earlier  cases,  holding  that 
there  is  no  property  in  a  trade-mark,  must  be  deemed  in  this 
respect  to  be  overruled.^ 

The  relation  of  "  good-will "  to  a  trade-mark  should  be  noticed. 
"  Good-will,"  as  applied  to  business,  is  a  broad  term.  It  includes 
every  advantage  which  a  proprietor  has  acquired  by  carrying  on 
his  business,  whether  it  be  connected  with  the  premises  on  which 
the  business  is  conducted  or  with  the  name  under  which  it  is 
managed,  etc^  When  it  assumes  the  form  of  a  name,  it  very 
closely  resembles  a  trade-mark.    It,  like  a  trade-mark,  is  a  species 


Aluager  ('official  measurer')  unto  the 
cloths,  that  the  people  of  this  town  of  Col- 
chester .  .  .  receive  a  great  part  of  their 
sustenance  by  making  of  baize;  that  for 
many  years  past,  by  occasion  of  the  care- 
ful search  there  made,  they  have  been 
truly  and  not  deceitfully  made,  and  of  a 
known  goodness  ;  that  such  of  them  as  are 
fully  wrought  are  sealed  with  a  seal  attest- 
ing their  goodness  ;  if,  upon  search,  any 
prove  not  so  good,  they  are  marked  for 
such,  so  as  the  buyers,  both  within  the 
realm  and  abroad,  may  be  ascertained  of 
the  goodness  of  the  merchandise  by  view 
of  the  seal  whereon  (the  law  requiring  it) 
such  great  care  hath  been  had  from  time 
to  time  that  upon  the  credit  of  the  seal 
alone  they  were  plentifully  and  readily 
vended  in  all  places.  And  albeit  there 
had  not  been  hitherto  any  discovery  made 
of  delinquents  in  this  kind,  yet  their 
Lordships,  taking  into  their  serious  con- 
sideration that  the  offence  of  the  said 
Thomas  is  a  false  cosenage,  by  which  the 
buyers,  being  deceived,  will  not  be  so  ready 
to  buy  any  other  cloths  upon  the  credit  or 
attestation  of  the  seals,  so  as  the  good  and 
true  workers  of  cloth  will  not  receive  en- 
couragement to  make  true  workmanship 


as  they  were  wont,  but  be  enforced  for  vent 
to  make  their  cloths  like  unto  those  where- 
unto  such  counterfeit  seals  shall  be  affixed, 
and  in  time  produce  a  disaffiance  to  the 
attestations  of  the  seals,  whereof  will 
ensue  many  inconveniences;  and  tliey  can 
foresee  that  if  this  new  falsity  shall  be  un- 
punished, it  will  grow  further  abroad." 

Tlie  court  made  Jupp's  term  of  im- 
prisonment depend  upon  his  discovering 
and  making  known  the  names  of  the  mer- 
chants for  whom  he  had  practised  his 
deceit. 

It  is  plain  that  many  of  the  salutary 
rules  underlying  at  the  present  day  tlie 
condemnation  of  counterfeiters  of  trade- 
marks, were  then  fully  recognized.  The 
underlying  element  of  public  policy  is 
strongly  presented  in  this  decree. 

1  Hall  V.  Barrows,  9  Jur.  N.  s.  483  ; 
s.  c.  4  De  G.  J.  &  S.  150 ;  Leather  Cloth 
Co.  V.  Am.  Leather  Cloth  Co.,  4  De  G.  J. 
&  S.  137  ;  Partridge  v.  Mends,  How.  App. 
Cas.  559. 

-  The  overruled  cases  are  :  Perry  v. 
Truefitt,  6  Beav.  66 ;  Blanchard  v.  Hill, 
2  Atk.  484. 

^  Cliurton  V.  Douglas,  Johns.  Rep. 
(Eng.)  174,  188. 


TITLE    BY    ORIGINAL    ACQUISITION.  543 

of  property.  Questions  concerning  it  frequently  arise  in  connec- 
tion with  the  assets  of  a  partnership,  and  are  more  appropriately 
considered  in  a  treatise  upon  contracts. 

An  important  consequence  of  regarding  a  trade-mark  as  prop- 
erty, and  thus  a  subject  of  ownership,  is,  that  it  may  be  claimed, 
and  the  right  to  it  enforced  in  our  courts,  by  aliens  as  well  as  by 
citizens.  Accordingly,  if  an  Englishman  places  upon  spools  of 
thread  sold  by  him  here,  a  valid  trade-mark,  he  can  prevent,  by 
injunction,  sales  of  the  commodity  bearing  an  imitation  mark  in 
this  country. 

II.  Trade-marks  at  common  law  or  by  statute.  —  (1)  At  common 
law.  —  The  selection  of  any  particular  trade-mark  depends  on 
the  volition  of  the  party  inventing  or  appropriating  it.  The 
property  in  it  depends  upon  the  act  of  appropriation,  or,  in  other 
words,  upon  "  occupancy."  The  person  first  using  the  mark  for 
a  particular  purpose,  excludes  others  from  using  it  for  an  inter- 
fering purpose.^  It  has  been  held  accordingly  that  the  property 
in  a  trade-mark  consists  in  the  right  to  the  exclusive  use  of  some 
mark,  name,  or  symbol  in  connection  with  a  particular  manufac- 
ture or  vendible  commodity.^  It  is  an  element  in  the  right  that 
the  article  with  the  mark  attached  is  "  in  the  market "  wdien  it  is 
imitated.^  Accordingly,  it  is  no  violation  of  the  right  to  use  the 
very  mark  for  some  wholly  distinct  purpose,  —  as  if  the  word 
"  Congress "  had  been  arbitrarily  attached  to  the  bottled  water 
of  a  mineral  spring,  it  would  be  perfectly  lawful  for  a  manufac- 
turer to  call  his  shoes  "  Congress "  shoes. 

(2)  By  statute.  —  There  is  legislation  upon  this  subject,  both  in 
England  and  the  United  States. 

In  England  Parliament  has  established  a  system  of  registration. 
The  act  of  registration  is  now  of  great  importance,  as  being  vital 
to  the  legal  existence  of  the  trade-mark.  There  are  clauses  in 
the  statutes  providing  for  a  preliminary  examination  by  a  com- 
mission of  the  trader's  claim,  and  a  review  in  proper  cases  by  the 
Court  of  Chancery  of  the  decisions  of  the  commissioners.  The 
statutory  methods  are  not  to  be  resorted  to  so  as  to  violate  some 
other  right  or  to  offend  against  the  law.*  The  present  statutes 
are  referred  to  in  the  note.^  There  has  been  a  great  number  of 
legal  decisions  under  these  acts,  and  an  examination  of  them  will 
often  be  highly  useful  for  the  purpose  of  settling  general  ques- 

1  Wotherspoon  v.  CniTie,  L.  R.  5  H.  *  See  Hendricks  v.  Montagu,  L.  R. 
of  L.  Cas.  508.  17  Ch.  D.  638  (C.  A.). 

2  Leather  Cloth  Co.  v.  Am.  Leather  °  AQ  &.  il  Vict.  c.  57;  48  &  49  Id, 
Cloth  Co.,  11  H.  of  L.  Cas.  523.  c.  63,  49  &  50   Id.  c.  37;    51  &  52   Id, 

3  McAndrew  v.  Bassett,  4  De  G.  J.  &  c.  50. 
S.  380. 


544  THE  LAW  OF  PERSONAL  PROPERTY. 

tions  arising  under  this  brunch  of  hi\v,  since  the  right  to  "  regis- 
ter "  frequently  turns  upon  principles  of  general  application. 

In  the  United  States  Congress  has  no  power  to  pass  laws  of 
general  application  upon  this  class  of  subjects.  Whatever  power 
it  possesses  is  derived  from  its  authority  to  "  regulate  commerce." 
This  is  confined  by  the  United  States  Constitution  to  "  com- 
merce with  foreign  nations,  and  among  the  several  States,  and 
with  the  Indian  tribes."  Any  regulation  as  to  trade-marks  affect- 
ing commerce  wholly  within  a  particular  State  or  States  is  uncon- 
stitutional and  void.^ 

The  courts  of  the  United  States  have  the  power  under  the  judi- 
ciary legislation  of  the  United  States  to  give  relief  to  persons 
claiming  a  trade-mark,  whether  aliens  or  citizens,  when  the  action 
is  brought  between  citizens  of  different  States,  or  between  a  citizen 
of  a  State  and  an  alien.  Finally,  any  State  may  legislate  upon 
trade-marks  so  far  as  domestic  commerce  is  concerned,  and 
without  interfering  with  the  regulative  power  of  Congress  already 
referred  to. 

III.  What  constitutes  a  valid  trade-mark.  —  It  is  essential  to 
the  existence  of  a  trade-mark  that  it  should  designate  the  origin 
or  ownership  of  a  thing,  and  not  merely  its  kind  or  quality. 
Under  this  rule,  many  questions  have  arisen  as  to  the  right  of 
appropriation  of  ordinary  words  of  the  language,  such  as  "  balm," 
"  medicated  balm,"  "  soothing-syrup,"  "  yellow  ointment,"  and 
the  like.  It  is  well  settled  that  there  can  be  no  exclusive  appro- 
priation of  such  words  to  express  the  idea  or  thing  that  such 
words  naturally  convey.  Any  manufacturer  or  owner  has  a  perfect 
right,  of  which  he  cannot  be  deprived,  to  designate  an  article 
which  he  produces  or  sells  by  a  word  or  phrase  commonly  used  for 
that  purpose.  To  deny  this,  would  be  to  give  a  particular  person 
an  undeserved  advantage  over  others.  If  a  person  uses  two 
words  in  combination,  one  of  which  serves  to  designate  owner- 
ship or  origin,  and  the  other  character,  kind,  or  quality,  he  ob- 
tains no  right  to  the  exclusive  use  of  the  latter  word.  An 
illustration  is  that  the  use  of  the  expression  "  Newcastle  Chroni- 
cle "  as  the  title  of  a  newspaper,  would  not  prevent  another  per- 
son from  using  the  phrase  "  Sporting  Chronicle."  ^  Accordingly, 
one  cannot  acquire,  by  mere  use,  an  exclusive  right  to  a  term  which 
is  simply  descriptive  of  the  kind  of  business  he  carries  on.^  (a) 

1  United  States  v.  Steffens,  100  U.  S.  3  Colonial  Life  Ass.  Co.  v.  Home  & 
82 ;  post,  p.  553.                                               Colonial  Ass.  Co.,  33  Beav.  548. 

2  Cowen  V.  Hulton,  46  L.  T.  N.  s.  897. 


{a)  Employers' Ass.  Corp.  r.  Emploj-ers'  Ins.  Co.,  61  Hun,  552  ;  Koehlerv.  Sanders, 
122  N.  Y.  65. 


TITLE    BY   ORIGINAL    ACQUISITION.  545 

The  object  in  the  case  cited  was,  to  obtain  the  exclusive  use  of 
the  word  "  colonial  "  as  descriptive  of  colonial  business.  So  if  one 
company  calls  itself  "  The  Law  Life  Company,"  it  cannot  prevent 
another  from  using  the  expression  "  The  Equity  and  Law  Life 
Company."  ^  Again,  an  adjective  merely  describing  the  quality 
of  a  manufactured  article,  will  not  be  protected  by  the  court  as 
a  trade-mark.2  An  instance  is  the  expression,  "  Nourishing 
London  Stout." 

The  following  instances  of  a  valid  trade-mark  may  be  cited. 

(1)  The  name  of  the  manufacturer  or  seller.  Examples  :  — 
Singer  Sewing  Machine  ;  ^  Thorleys  Food  for  Cattle  ;  ^  Estcourfs 
Hop  Supplement ;  ^  Hemy,  etc..  Tutor  for  the  Piano  Forte.^ 

The  use  of  a  name  in  such  a  case  does  not  give  such  an  exclu- 
sive right  of  property  as  to  prevent  another  person  of  the  same 
name,  acting  in  good  faith,  from  designating  articles  of  the  same 
kind  made  by  him  in  the  same  way.''  (a)  This  principle  is  not  to 
be  used  as  a  cover  for  fraud.  Thus,  while  a  person  may  legally 
assume  a  name,  which  is  the  patronymic  of  a  family  (or,  at  least, 
is  not  liable  to  an  action  for  assuming  such  a  name),  yet  it  would 
seem  that  he  must  not  do  this  for  the  purpose  of  invading  the 
rights  of  another  in  respect  to  a  trade-mark.^  The  name  of  a 
manufacturer  (particularly  of  the  first  maker)  may,  in  course 
of  time,  become  a  mere  sign  of  the  quality  of  the  article,  in 
which  case  it  will  cease  to  have  the  characteristics  of  a  trade- 
mark.^ 

It  is  not  necessarily  a  defence  to  an  infringer  that  he  has  stated 
the  truth.  The  real  wrong  is  in  the  intent  to  deceive.  Accord- 
ingly, where  one  Hemy  had  been  employed  to  compose  a  work 
marked  with  his  name,  and  was  subsequently  employed  by  other 
publishers  to  prepare  a  work  on  the  same  subject,  also  marked 
with  Hemy's  name  with  some  variations  in  the  title,  the  right  of 
the  first  publisher  was  deemed  to  be  infringed.^*^ 

1  Colonial   Life  Ass.   Co.    v.    Home   &  ^  Meneely  v.  Meneely,  62  N.  Y.  427. 
Colonial  Ass.   Co.,  supra,  per  Master   of  ^  Dy  Boulay  v.  Du  Boulay,  L.  R,  2  P. 
the  Rolls,  p.  550.  C.  430  ;  s.  c.  6  Moore  P.  C.  C.  (n.  s.)  31. 

2  Raggett  y.  Findlater,  L.  R.  17  Eq.  29.  In  this   case,  the  point   for  which   it   is 

3  Singer,  &c.  Manufacturers  v.  Wilson,  cited  was  not  involved,  so  that  it  is  but  a 
L.  R.  3  App.  Cas.  376.  dictum. 

*  Massam  v.  Thorley's  Cattle  Food  Co.,  ^  Hall   v.  Barrows,  4  De  G.   J.  &  S. 

L.  R.  14  Ch.  D.  748.  150. 

Estcourt    V.    Estcourt  Hop    Essence  ^o  Metzler  v.  Wood,    L.   R.   8  Ch.  D. 

'Co.,  L.  R.  10  Ch.  App.  276.  606. 

6  Metzler  v.  Wood,  L.  R.  8  Ch.  D.  606. 


(a)  Brown  Chemical  Co.  v.  Meyer,  139  U.  S.  540;  Caswell  v.  Hazard,  121  N.  Y. 
484. 

35 


546  THE  LAW  OF  PERSONAL  PKOPERTY. 

(2)  The  name  of  the  place  of  origin.  This  may  become  a 
trade-mark.^ 

(3)  Use  of  the  ivord  "  patent  "  as  a  trade-mark,  ivhere  the  sub- 
ject is  not  patented.  There  is  some  authority  for  holding  that 
the  word  "  patent "  cannot  be  used  as  a  trade-mark  by  reason  of 
the  misrepresentation  necessarily  involved.  The  more  modern 
view  is,  that  there  is  not  necessarily  a  misrepresentation  in  such 
a  case,  —  as,  for  example,  where  from  the  usage  of  many  years 
the  goods  have  acquired  the  designation  in  the  trade  generally  of 
patent.^  (a) 

(4)  Arbitrary  expressions.  These  are  necessarily  unlimited. 
A  manufacturer  or  vendor  may,  at  pleasure,  invent  new  terms,  or 
give  new  adaptations  to  old  ones.  As  long  as  tliey  describe  origin 
or  ownership  they  will  be  protected  as  property.  A  few  instances 
sanctioned  by  the  courts  will  suffice  :  "  Radstock  "  Collieries,^  "  An- 
gostura "  Bitters.*  So  an  arbitrary  word  may  be  used  in  connec- 
tion with  the  name  of  the  manufacturer.  An  example  is  Ford's 
Eureka  Shirts.^  Similar  words  may  be  used  to  designate  natural 
products,  the  subject  of  sale,  such  as  the  waters  of  springs,  —  e.  g., 
Apollinaris  Water,^  or  Congress  Spring  "WaterJ  So  also  an  arbi- 
trary number,  as  No.  10,  not  corresponding  with  a  street  number.^ 
So-called  "fancy  names"  are  protected.  Examples  are  Pride, 
as  applied  to  cigars ;  ^  Royal,  to  designate  a  flavoring  extract.^^ 
But  under  this  rule  the  expression  Crold  Medal  is  not  a  good 
trade-mark.^i  (j^-^ 

(5)  Title  of  a  book.  There  may  be  a  trade-mark  in  the  title  of 
a  book.12 

(6)  Device  or  label.     There  may  be  a  trade-mark  in  a  device, 

1  Radde  v.  Norman,  L.  R.  14  Eq.  348;  ^  Apollinaris  Co.  v.  Norrish,  33  L.  T. 
McAndrew  v.    Bassett,   4  De  G.   J.  &  S.     242. 

380  ;     Newman    v.    Alvord,    51    N.    Y.  "^  Congress,    &c.   Spring   Co.    v.   High 

189.  Rock,  &c.  Spring  Co.,  45  N.  Y.  291. 

2  ILirshall  v.  Ross,  L.  R.  8  Eq.  651 ;  8  G.  &  H.  Mfg.  Co.  v.  Hall,  61  N.  Y. 
Ford  V.  Foster,  L.  R.  7  Ch.  App.  611.    But  226. 

see  Cheavin  v.   Walker,  L.  R.  5  Ch.    D.  »  Hier  v.  Abrahams,  82  N.  Y.  519. 

850.  I*'  Royal  Baking  Powder  Co.  v.  Sherrill, 

s  Braham  v.  Beachim,  L.  R.  7  Ch.  D.  59  How.  Pr.  17. 

848.  11  Taylor  v.  Gillies,  59  N.  Y.  331. 

4  Siegert  v.  Findlater,  L.  R.  7  Ch.  D.  12  Dicks  v.  Yates,  L.  R.  18  Ch.  D.  76  ; 
801.  Potter  v.  McPhersen,  21  Hun,  559. 

5  Ford  V.    Foster,    L.  R.   7  Ch.  App. 
611. 


(rt)  Cf.   New  York  Card  Co.  v.  Union    exclusive  use  of  the  word  "  Columbia"  as 
Card  Co.,  39  Hun,  611.  a  trademark.    Columbia  Mill  Co.  v.  Alcorn, 

(b)  One  cannot  acquire  a  right  to  the     150  U.  S.  460. 


TITLE    BY   ORIGINAL    ACQUISITION.  547 

sign,  or  symbol,  as  well  as  in  words,  or  there  may  be  a  combi- 
nation of  signs,  symbols,  or  words.^  (a) 

There  is  a  tendency  in  the  English  cases  to  hold  that  even 
where  there  is  not,  strictly  speaking,  a  trade-mark,  there  will  be 
an  injunction  granted  to  prevent  a  trader  from  so  conducting 
himself  as  to  mislead  persons  who  intend  to  purchase  of  another 
dealer,  and  so  induce  them  to  buy  of  himself.  This  doctrine  pro- 
ceeds on  the  broad  ground  that  a  fraud  must  not  be  committed, 
and  is  independent  of  the  theory  that  a  trade-mark  is  property .^ 
It  has  been  held  that  a  trade-mark  cannot  exist  "  in  gross,"  but 
only  as  an  incident  to  a  thing  used,  manufactured,  or  sold.^ 

It  may  be  said  as  to  trade-marks  in  general  that  the  mere  intent 
to  use  a  particular  name  will  not  be  sufficient  to  give  a  claim  as 
against  one  who,  though  aware  of  such  intent,  acts  by  anticipation, 
and  first  makes  use  of  the  name.^ 

IV.  Assignment  of  a  trade-mark.  —  Though  a  trade-mark  is 
for  most  purposes  to  be  regarded  as  property,  the  question  of  its 
assignability  depends  greatly  upon  the  nature  of  the  mark  and 
the  mode  in  which  it  has  been  used.^  The  assignment  must  not 
result  in  a  false  assertion,  —  as,  for  example,  that  goods  not 
manufactured  by  A.,  the  assignor,  are  in  fact  made  by  him.^ 
Still,  treating  a  trade-mark  as  property,  it  may  in  general  be  sold, 
and  transferred  upon  a  sale  and  transfer  of  the  manufactory  of 
the  goods  on  which  the  mark  has  been  commonly  affixed,  and 
may  be  lawfully  used  by  the  purchaser.  The  difficulty  mainly 
arises  when  the  trade-mark  consists  of  the  name  of  the  manu- 
facturer, and  the  probability  is  that  the  public  will  be  misled 
by  the  supposition  that  they  are  buying  goods  made  by  the 
original  manufacturer.'^  (h)  A  court  of  equity  could  under 
such  circumstances  give  no  protection  to  an  assignee,  since  he 

1  Cook  V.   Starkweather,   13  Abb.  Pr.  3  Cotton  v.  Gillard,  44  L.  J.  Ch.  90. 

N.  s.    392  ;  Godillot  v.   Harris,  81  N.  Y.  •*  Civil   Service  Supply  Association   v. 
263  ;  Read  v.  Kichardson,  45  L.  T.  x.  s.  Dean,  L.  R.   13  Ch.  D.  512 ;  Maxwell  v. 
54.     The  device  in  this  last  case  was  a  Hogg,  L.  R.  2  Ch.  App.  307. 
bull  dog's  head  on  a  black  ground,  sur-  ^  Per  TtiRNER,  L.  J.,  in  Bury  v.  Bed- 
rounded  by  a  circular  band,  on  which  were  ford,  4  De  Gr.  J.  &  S.  352. 
the  names  of  the  proprietors.  ^  Leather   Cloth   Co.  v.   Am.    Leather 

2  Lee  V.  Haley,  L.  R.  5  Ch.  App.  155  ;  Cloth  Co.,  4  De  G.  J.  &  S.  137,  144. 
Boulnois  V.   Peake,  L.  R.   13  Ch.  D.  513,  '^  Leather  Cloth  Co.    v.   Am.    Leather 
n.;   Hookham   v.    Pottage,    L.  R.  8   Ch.  Cloth  Co.,  11  H.  of  L.  Cas.  523. 

App.  91.  

(a)  The  adoption  of  packages  of  a  pecu-  trade-mark.     Fischer  i;.  Blank,  138  N.  Y. 

liar  form   and  color  in  which  to  enclose  244. 

merchandise  for  sale,  without  any  distin-  '  (h)  See  Symonds  v.  Jones,  82  Jre.  302  ; 

guishing  symbol,  letter,  sign,  or  seal,  is  Brown  Chemical  Co.  v.  Meyer,  139  U.  S. 

not   in  general   sufficient  to  constitute  a  540. 


548  THE  LAW  OF  PERSONAL  PEOPEETY. 

would  violate  the  maxim  that  he  who  comes  into  equity  must  do 
so  with  clean  hands. 

The  principles  which  govern  the  use  of  a  name  which  has 
already  acquired  the  character  of  a  trade-mark  by  another  person, 
whether  of  the  same  name  or  not,  are  well  stated  in  the  case 
of  Massam  v.  Thorley's  Cattle  Food  Company. ^  Bearing  in  mind 
that  a  person  by  the  common  law  may  assume  a  name,  it  is  easy 
to  see  that  any  inflexible  rule  that  a  person  having  the  same  name 
as  the  first  appropriator  may  use  the  trade-mark  with  impunity, 
is  not  only  promotive  but  provocative  of  fraud.  The  qualification 
is  accordingly  necessary,  that  a  person  of  the  same  name  cannot 
use  a  prior  trade-mark  belonging  to  another,  with  intent  to  deceive, 
nor  continue  to  use  it  if  such  continued  use  be  calculated  to  deceive. 
It  was  at  one  time  thought  that  the  case  of  Burgess  v.  Burgess  ^ 
left  the  right  to  use  a  name  open,  without  qualification.  The 
effect  of  the  opinion  of  Lord  Justice  Knight  Bruce  in  that  case 
has  since  been  much  limited.^  This  class  of  cases  must  be  dis- 
tinguished from  those  where  the  article  has  acquired  the  name  of 
an  individual  as  an  article  of  commerce  as  distinguished  from  that 
of  a  manufacturer ;  an  example  is  that  of  "  Liebig's  Extract  of 
Beef."     Such  a  name  cannot  properly  be  treated  as  a  trade-mark. 

The  same  rule  would  govern  an  assignment,  a  ruling  element 
in  this  whole  subject  being  that  there  must  be  no  deception.  No 
assignment  of  a  trade-mark  should  be  upheld  by  the  courts  which 
has  a  misleading  effect. 

The  Thorley  Case,  being  decided  in  the  Court  of  Appeal, 
must  be  regarded  as  practically  overruling  a  view  taken  by  the 
Master  of  the  Rolls  in  an  earlier  decision,*  to  the  effect  that  a 
person  who  has  by  fair  means  gained  the  knowledge  of  a  trade- 
secret  may,  after  the  death  of  the  original  inventor,  make  and  sell 
the  article  under  his  name.  This  case  apparently  went  upon  the 
ground  that  a  trade-mark,  on  the  death  of  the  inventor,  ceases  to 
be  property,  and  is  open  to  all,  puhlici  juris.  The  correct  view  is 
that  the  trade-mark  passes  to  the  representatives  of  the  inventor 
or  appropriator  at  his  death.^ 

A  mortgagee  will  not  necessarily  stand  in  the  exact  position  of 
an  assignee.  He  may  have  taken  a  mortgage  on  the  stock  in 
trade  with  the  trade-marks  simply  as  a  security  for  his  claim, 
without  using  the  trade-marks,  or  having  an  intent  to  use  them. 
Accordingly,  in  such  a  case  he  cannot  restrain  persons  claiming 

1  L.  R.  14  Ch.  D.  748.  *  James  v.  James,  L.  E.  13  Eq.  421. 

2  3  De  G.  M.  &  G.  896.  «  Massam  v.  Thorley's  Cattle  Food  Co., 
8  Massam  v.  Thorley's  Cattle  Food  Co.,     supra,  p.  754. 

L.  R.  14  Ch.  D.  748,  752. 


TITLE    BY    ORIGINAL    ACQUISITION.  549 

under  the  mortgagor  from  using  the  trade-marks.^  The  principle 
asserted  was,  that  a  trade-mark  will  not  be  protected  by  an  in- 
junction in  favor  of  one  who  has  never  used  it,  is  not  at  the  time 
using  it,  and  who  does  not  allege  that  he  intends  to  use  it. 

V.  Trade-marks,  as  affected  by  the  sale  of  the  business,  including 
transfers  on  the  dissolution  of  a  partnership.  —  This  question  is 
not  affected  by  the  point  whether  the  sale  is  by  the  trader  himself, 
or  by  his  assignee  in  bankruptcy.  On  a  sale,  the  former  owner 
has  no  right,  on  setting  up  a  new  business  of  the  same  kind,  to 
use  the  trade-marks  of  his  old  business,  or  in  any  other  way  to 
represent  himself  as  carrying  on  the  identical  business  which 
was  sold,  although  as  a  general  rule  he  has  a  right  to  set  up  a 
new  business  of  the  same  kind,  even  next  door  to  the  old  busi- 
ness.2  (a)  The  point  is,  that  he  must  do  nothing  to  mislead  cus- 
tomers. The  only  way  to  bind  him  not  to  set  up  the  new  business 
is  to  obtain  a  specific  agreement  from  him  to  that  effect.  It  was 
at  one  time  decided  that  the  court  would  restrain  the  party  set- 
ting up  the  new  business  from  sending  special  solicitations  to  the 
customers  of  the  old  house  inviting  them  to  deal  with  him  at  the 
new  place  of  business.  This  proposition  must  now  be  regarded 
as  overruled. 2 

On  the  dissolution  of  a  partnership,  special  questions  arise. 
Some  of  these  will  be  stated. 

(1)  The  first  case  is  one  where  stock-in-trade  is  purchased, 
but  there  is  no  assignment  of  the  good-will  of  the  business.  The 
outgoing  partner  is  then  entitled  to  an  injunction  to  restrain  the 
use  of  his  name  in  the  style  of  the  firm.* 

(2)  A  brand  which  has  become  a  trade-mark  may  be  valued 
and  sold  with  the  works.^ 

(3)  A  trader  having  been  a  manager  or  partner  in  a  firm  may, 
on  setting  up  an  independent  business,  state  to  the  public  that  he 
has  been  with  the  firm,  but  must  do  so  in  a  way  not  calculated  to 
lead  the  public  to  believe  that  he  is  carrying  on  the  business 
of  the  firm  which  he  has  left,  or  is  in  any  way  connected  with 
it.6  (6) 

1  Beazley  v.  Scares,  L.  R.  22  Ch.  D.  660.  of  in  Pearson  i*.  Pearson  in  the  Court  of 

2  Hudson  V.  Osborne,  39  L.  J.  Ch.  79.  Appeal  (L.   R.   27  Ch.  D.   145),  and  was 

3  Labouchere  v.  Dawson,  L.  E.  13  Eq.  overruled  in  Collier  v.  Chadwick  (Court,  of 
322.  The  decision  in  this  case  elicited  Appeal),  referred  to  in  Vernon  v.  Hallam 
much  difference  of  opinion  among  English  (L.  R.  34  Ch.  D.  748,  at  pp.  751  and  752), 
judges.  The  principal  objection  to  it  which  follows  Pearson  v.  Pearson,  supra. 
seemed  to  be  that  it  established  an  im-  *  Scott  v.  Rowland,  26  L.  T.  N.  s.  391. 
plied  promise  or  obligation  in  restraint  of  ^  Hall  v.  Barrows,  4  De  G.  J.  &  S.  150. 
trade.    The  case  was  distinctly  disapproved  ^  Hookham  v.   Pottage,   L.    R.    8   Ch. 

(a)  Marcus  Ward  &  Co.  v.  Ward,   40  (b)  Van  "Wyck  v.  Horowitz,  39  Hun, 

N.  Y.  St.  R.  792.  237. 


550  THE  LAW  OF  PERSONAL  PROPERTY. 

(4)  If  the  trade-mark  contain  the  name  of  one  of  the  partners, 
such  as  "  Condy's  Fluid,"  either  party,  on  dissolution,  may  use  the 
name  as  loui^  as  there  is  no  fraud  by  the  party  whose  name  is  not 
used  in  misleading  the  public  in  the  supposition  that  the  article 
is  manufactured  by  him  whose  name  is  used.i  Where  no  provi- 
sion is  made  by  the  partners  as  to  the  trade-mark  in  such  a  case, 
it  is  really  an  undivided  asset  belonging  to  the  former  partners 
in  common,  and  one  cannot  prevent  the  other  from  using  it2(a) 

More  recently,  it  has  been  held  by  the  Court  of  Appeal  ^  that  as 
one  may  assume  any  name  that  he  pleases,  there  is  nothing  to 
prevent'a  trader  from  using  the  name,  even  of  a  living  person,  as 
a  trade-mark,  so  long  as  he  does  not  interfere  with  some  other 
existing  trade-mark.  The  sole  right  on  which  a  court  of  equity 
acts  is  that  a  trader  must  not  use  a  description,  whether  true  or 
not,  which  is  intended  to  represent,  or  calculated  to  represent,  to 
the  public  that  another  man's  business  is  his  business,  and  so  by 
a  fraudulent  statement  deprive  another  of  the  business  which 
would  otherwise  come  to  him.  The  court  interferes  solely  for 
the  purpose  of  protecting  the  owner  of  a  trade  or  business  from 
a  fraudulent  invasion  of  that  business  by  somebody  else.  It  does 
not  interfere  to  prevent  the  outside  world  from  being  misled.'^ 

VI.  Infringement. — The  remedy  for  infringement  is  twofold. 
It  is  either  by  an  action  for  damages  or  an  injunction  in  equity. 
The  injunction  is  by  far  the  most  common,  as  it  is  the  most  effec- 
tive remedy. 

Some  of  the  cases  in  which  an  action  at  law  for  damages  has 
has  been  brought  are  cited  in  a  note.^  In  such  an  action  it  is 
an  essential  ingredient  that  the  imitation  must  be  calculated  to 
deceive.  It  is  really  founded  in  fraud ;  and  the  point  whether 
the  imitation  was  calculated  to  deceive,  and  whether  the  defend- 
ant used  the  mark  with  intent  to  supplant  the  plaintiff  in  his 
business,  will  be  submitted  to  the  jury.^ 

App.  91.     In  this  case  the  advertisement  *  Levy  v.  Walker,  10  Ch.  D.  436,  447, 

was   "P.  from  H.  &  P."      It   was   held  448;  New  Haven  Patent  Rolling  Spring 

not  to  be  proper,  as  not  being  sufficiently  Bed  Co.  v.  Farren,  51  Conn.  824. 
clear  ^  Blofield  v.  Payne,  4  B.  &  Ad.  410  ; 

1  Condy  V.   Mitchell,    37    L.   T.    766  Sykes  v.  Sykes,  3  B.  &  C.  541  ;  Rodgers 

/Q,  j^_)  V.  Nowill,  5  C.  B.  109 ;  Morison  v.  Salmon, 

'2  Banks  v.  Gibson,  34  Beav.  566.  2  M.  &  Gr.  385  ;  Crawshay  v.  Thompson, 

8  Jessel,   M.  R.;   James   and   Bram-  4  Id.  357. 
WELL,  L.  JJ.  ^  See  cases  s^lpra. 

(a)  Caswell  v.  Hazard,  121  N.  Y.   484  no  express  mention  is  made  in  the  deed  of 

Where,  upon  the  dissolution  of  a  firm,  one  assignment.     Merry  v.  Hooper,  111  N.  Y. 

of  the  partners  retires,  and  the  remaining  415.      See   also    Menendez   v.    Holt,    128 

members  succeed  to  and  continue  the  biisi-  U.  S.  514;  Laughman's  Appeal,   128  Pa. 

ness,  the  right  to  use  the  trade-marks  of  St.  1. 
the  old  firm  passes  to  the  new,  although 


TITLE    BY   ORIGINAL   ACQUISITION.  551 

In  actions  for  an  injunction  in  equity  there  are  said  to  be  four 
elements :  That  the  plaintiff  has  properly  acquired  the  trade- 
mark ;  that  there  is  no  false  representation  by  him  calculated  to 
mislead ;  that  the  article  is  used  in  some  way  in  trade  ;  that  the 
defendant  has  imitated  the  mark  for  the  purpose  of  making  profit 
or  use  of  other  articles  of  a  similar  description.^  The  court  pro- 
ceeds upon  the  right  of  property,  and  accordingly  the  injunction 
can  be  had,  even  though  the  infringer  used  the  trade-mark  inno- 
cently .^  It  is  a  further  rule  that  the  owner  can  have  an  account 
taken  of  the  profits  realized  by  the  infringer.  But  compensation 
of  this  kind  will  only  be  given  for  use  of  the  trade-mark  after 
the  infringer  has  been  informed  of  the  ownership  by  another.^ 

Some  of  the  rules  governing  the  right  to  an  injunction  are 
these :  — 

(1)  The  plaintiff  must  seek  his  remedy  "with  clean  hands."  (a) 
The  meaning  of  this  expression  is,  that  he  must  not  be  engaged 
in  any  attempt  to  mislead  the  public,  —  as,  for  instance,  palming 
off  a  worthless  article  as  valuable  and  useful.  It  is  no  answer  to 
this  proposition  to  say  that  a  person  is  not  answerable  for  a  false- 
hood in  his  trade-mark  because  it  may  be  so  gross  and  palpable 
that  no  one  is  likely  to  be  deceived  by  it."^  This  is  not  a  question 
so  much  between  the  plaintiff  and  the  infringer  as  it  is  between 
the  plaintiff  and  the  public.  The  objection  goes  to  the  founda- 
tion of  the  plaintiff's  right,  and  asserts  that  a  cause  of  action 
bottomed  on  a  fraud  against  the  public  cannot  be  recognized  in  a 
court  of  justice. 

(2)  The  plaintiff's  trade-mark  must  have  been  imitated.  Still, 
it  is  not  necessary  that  the  imitation  should  be  so  close  as  to  de- 
ceive persons  seeing  the  two  marks  side  by  side.  It  is  enough 
that  the  degree  of  resemblance  is  such  that  ordinary  purchasers, 
proceeding  with  ordinary  caution,  are  likely  to  be  misled.^  It  is 
not  absolutely  necessary  to  show,  in  order  to  maintain  an  action, 
that  the  public  has  been  actually  deceived.  It  is  sufficient  that 
the  imitation  is  calculated  to  deceive  (b)  (and  this  may  be  deter- 
mined from  inspection^),  or  that  there  is  an  intention  to  deceive.' 

1  See  McAiidrew  v.  Bassett,  4  De  G.  Cloth  Co.,  4  DeG.  J.  &  S.  137,  148,  per 
J.  &  S.  380,  Lord  Chancellor. 

2  Millington  v.  Fox,  3  M.  &  C.  338  ;  &  Seixo  v.  Provezende,  L.  R.  1  Ch.  App. 
Edelsten  v.  Edelsten,  1  De'G.  J.  &  S.  185  ;  192. 

Dixon  V.  Fawcus,  3  Ell.  &  Ell.  537.  «  Hookham  v.  Pottage,  L.   R.    8  Ch. 

3  Edelsten  v.  Edelsten,  siqjra.  App.  91  ;  Alexander  v.  Morse,  14  R.  1. 153. 

4  Leather  Cloth  Co.   v.   Am.   Leather  ^  Cope  v.  Evans,  L.  R.  18  Eq.  138. 


(a)  See  Prince  Mfg.  Co.  v.  Prince  Metal-     AVirtz  v.  Eagle  Bottling  Co., 50  N.  J.  Eq. 
lie  Paint  Co.,  135  N.  Y.  24.  164. 

{b)  Heinz   v.   Lutz,   146  Pa.  St.   592 ; 


552  THE  LAW  OF  PERSONAL  PROPERTY. 

(3)  Delay  by  the  plaintiff  may  cause  the  court  to  refuse  relief. 
All  owner  may  proceed  at  once,  before  any  one  has  been  actually 
misled,  for  the  life  of  a  trade-mark  may  depend  upon  the  prompti- 
tude with  which  the  right  of  property  is  vindicated.^  Yet  an 
injunction  will  not  necessarily  be  refused  because  considerable 
time  has  elapsed  since  infringement  first  took  place.  The  court 
will,  however,  in  such  cases  require  clearer  proof  of  fraudulent 
intent,  and  that  the  plaintiff  has  been  actually  injured  by  the 
infringement.^  The  court  will  not  regard  delay  for  the  purpose 
of  obtaining  sufficient  proof  of  the  injury  sustained  as  evidence 
of  laches  or  neglect.^ 

(4)  It  has  been  held  that  in  deciding  the  question  of  the  piracy 
of  a  trade-mark,  the  color  of  the  mark  cannot  be  taken  into 
account.'* 

(5)  The  injunction  in  a  proper  case  may  extend  -to  third  per- 
sons, such  as  carriers  of  goods  having  forged  brands.^  They  may 
also  be  compelled  to  disclose  the  names  of  the  persons  from  whom 
the  goods  were  received.^  A  purchaser  of  the  goods  may  be 
enjoined  from  selling  them,  even  though  innocent  of  the  forgery 
at  the  time  of  his  purchases.'^  So  prmters  of  forged  labels  may  be 
liable,  as  aiding  in  the  violation  of  the  rights  of  the  owner.^ 

VII.  Registration  of  trade-marks.  —  A  sj^stem  of  registration 
of  trade-marks  is  now  established  in  England  by  the  Act  46  &  47 
Vict.  (1883)  c.  57.^  This  is  a  substitute  for  the  prior  registra- 
tion act  of  1875,  and  repeals  it.  The  act  is  drawn  with  some 
detail.  It  is  confined  to  marks  for  particular  goods  or  classes  of 
goods.  Opposition  may  be  made  to  an  application  for  registration 
in  a  prescribed  manner,  and  if  the  application  is  persisted  in,  the 
question  is  determined  by  the  officer  designated  by  the  act,  whose 
decision  is  subject  to  appeal  to  the  Board  of  Trade.  This  body 
may  in  turn  refer  the  appeal  to  the  court.  Registration  is  pre- 
sumptive evidence  of  a  right  to  exclusive  use.  If  the  trade-mark 
is  one  of  the  class  that  can  be  registered  under  the  act,  there  can 
be  no  proceeding  for  an  injunction  or  for  damages,  unless  registra- 
tion has  been  had  either  under  this  or  former  acts,  or  has  been 
refused  by  the  proper  office.    A  certificate  of  refusal  may  be  ob- 

1  Johnston  v.  Orr  Ewing,  L.  R.  7  App.  6  Qrr  v.  Diaper,  L.  R.  4  Ch.  D.  92. 
Cas.  219.  T  Upmann  v.  Forester,  L.  R.  24  Ch.  D. 

2  Rodgers  v.  Rorlgers,  31  L.  T.  285.  231. 

3  Lee  V.  Haley,  L.  R.  5  Ch.  App.  155.  «  De  Kuyper  v.  Witteman,  23  Fed.  R. 
*  Nuthall  V.    Vining,  28    W.    R.  330.     871. 

Contra,  New  York   Cab   Co.   v.    Mooney,  ^  See  also  amendatory  acts  48  &  49  Vict. 

15  Abb.  N.  C.  152.  c.   63 ;  49   &  50  Id.   c.   37 ;  51  &  52  Id. 

s  Upmann  v.  Elkan,  L.  R.  7  Ch.  App.  c.  50. 
130. 


TITLE    BY    ORIGINAL  ACQUISITION.  553 

tained  from  the  office.  All  registrations  are  to  be  entered  in  a 
book  to  be  kept  for  this  purpose.^  Tlie  act  in  respect  to  cutlery 
trade-marks  (called  "  Sheffield  marks  "  )  is  modified  by  provisions 
concerning  the  cutlers'  company  in  Yorkshire.^  A  large  number 
of  decisions  have  already  been  made  by  the  court  in  carrying  this 
and  prior  acts  into  effect. 

No  truly  effective  system  of  registration  of  trade-marks  exists 
in  the  United  States.  It  is  not  open  to  Congress  to  establish  a 
general  and  uniform  system,  owing  to  a  want  of  constitutional 
power.  A  trade-mark  is  not  an  invention,  discovery,  or  writing 
within  the  meaning  of  the  eighth  clause  of  the  eighth  section  of 
the  first  article  conferring  upon  Congress  the  power  to  secure  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries.  A  regulation  of  a  trade-mark 
is,  at  most,  a  regulation  of  commerce,  which  must  be  limited  to 
"  Commerce  with  foreign  nations,  among  the  States,  and  with  the 
Indian  tribes."  Commerce  commencing  and  terminating  within 
the  limits  of  a  State  is  beyond  the  jurisdiction  of  Congress.  It 
was  on  these  grounds  that  it  was  decided  that  the  trade-mark 
legislation  of  Congress  of  the  years  1870^  and  1876^  was  uncon- 
stitutional, as  neither  in  its  terms  nor  essence  a  regulation  prop- 
erly limited,  but  was  intended  to  embrace  all  commerce,  including 
that  between  citizens  of  the  same  State.^  Tliis  decision  led  to  a 
statute  which  confined  the  right  to  registration  to  owners  of 
trade-marks  used  in  commerce  with  foreign  nations  or  with  the 
Indian  tribes,  provided  that  such  owners  were  either  domiciled  in 
the  United  States  or  located  in  any  foreign  country  or  tribes, 
which  by  treaty,  convention,  or  law  afforded  similar  privileges  to 
citizens  of  the  United  States.^ 

Under  this  act,  the  court  has  no  jurisdiction  over  a  suit  between 
citizens  of  the  same  State  respecting  a  trade-mark,  unless  the 
goods  were  intended  to  be  transported  to  a  foreign  country,  or  to 
be  used  in  lawful  commercial  intercourse  with  an  Indian  tribe." 

A  later  statute  provides  that  nothing  contained  in  the  act  of 
1881  shall  prevent  the  registry  of  any  lawful  trade-mark  right- 
fully used  by  the  applicant  in  foreign  commerce  or  with  Indian 
tribes  at  the  time  of  the  passage  of  that  act.^  Under  this  pro- 
vision, the  word  "  trade-mark "   for  the  purpose  of  registration 

1  46  &  47  Vict.  c.  57,  §§  62-80.  ^  Laws  of  1881,  ch.  138  (21  U.  S.  Stat. 

2  Id.  §  81.    See  also  51  &  52  Vict.  c.  50.  L.  502). 

3  16  U.  S.  Stat.  L.  198.  ''  Luyties  v.    Hollendeer,    30  Fed.   R. 

4  19  U.  S.  Stat.  L.  141.  632  ;  Ryder  v.  Holt,  128  U.  S.  525. 

5  United  States  v.  Steffens,  100  U.  S.  «  22  U.  S.  Stat.  L.  298. 
82.     See    Baldwin   v.  Franks,    120  U.  S. 

678,  687.    Ante,  p.  544. 


554  THE  LAW  OF  PERSONAL  PROPERTY. 

must  have  tlie  signification  given  to  it  by  the  general  rules  of 
the  common  law.^  Registration  is  no  more  than  prima  facie 
evidence  of  ownership.^  For  further  details,  the  act  should  be 
consulted. 

Criminal  legislation  for  the  protection  of  trade-marks  is  com- 
mon in  the  various  States  of  the  United  States.  In  New  York, 
violation  of  the  trade-marks  pi'ovisions  is  made  a  misdemeanor.^ 
In  England,  offences  against  the  trade-marks  registration  law- 
are  treated  summarily,  and  with  the  imposition  of  a  fine  upon  a 
convicted  offender,  (a) 

1  Moorman  v.  Hoge,  2  Sawy.   78,   85.  2  Glen  Cove  Mfg.  Co.  v.  Ludeling,  22 

This  case  construes  the  law  of  1870.  Fed.  R.  823. 

8  See  Penal  Code,  §§  364-371. 


(a)  See  Merchandise  Marks  Acts,  1887-1891, 50  &51  Vict.  c.  28,  and  54  Vict.  c.  15. 


CHAPTER  11. 

TITLE   BY   ACT    OF   THE   LAW. 

The  meaning  of  this  expression  is,  that  the  title  to  property 
may  be  gained  by  a  mere  legal  rule.  An  owner  may  thus  be 
deprived  of  his  ownership,  and  it  may  be  vested  in  another. 
This  will,  in  most  cases,  be  the  result  of  some  legal  proceed- 
ing. The  various  modes  which  will  be  considered  are,  I.  For- 
feiture;  II.  Escheat;  III.  Taxation;  IV.  Eminent  Domain; 
V.  Judgment ;  VI.  By  Proceedings  in  the  case  of  a  failing  debtor  ; 
VII.  By  succession  in  case  of  the  death  of  a  former  owner  (in- 
cluding testament  and  administration).  Each  of  these  instances 
will  be  treated  separately. 

DIVISION    I.  —  Forfeiture. 

This  is  a  species  of  title  of  great  antiquity,  and  applicable  both 
to  real  and  personal  property.  One  principal  ground  of  it  was 
the  commission  of  crime,  and  it  was  applied  to  a  large  number 
of  offences.  Usually  a  verdict  of  a  jury  was  necessary,  so  that 
there  was  no  forfeiture  until  conviction.  In  the  meantime,  the 
alleged  criminal  might  be  sustained  from  the  goods,  or  might  sell 
them  to  persons  acting  in  good  faith.  The  doctrine  of  relation, 
however,  applied  to  the  case,  so  that  in  some  instances  the  for- 
feiture after  the  conviction  was  referred  back  to  the  time  when 
the  wrongful  act  on  which  the  forfeiture  was  based  was  com- 
mitted. The  effect  of  this  rule  was  to  overturn  intermediate 
transfers,  —  as,  for  example,  where  they  were  of  a  fraudulent 
character,  calculated  to  deprive  the  king  or  other  claimant  of  the 
benefit  of  the  forfeiture.  The  cases  occurring  in  the  early  reports 
are  those  of  personal  actions  against  an  offender,  with  the  for- 
feiture of  property  inflicted  as  a  penalty  for  his  crime.  In  modern 
law,  proceedings  against  a  chattel  considered  as  itself  an  offender, 
without  reference  to  its  ownership,  are  of  much  importance,  and 
will  be  noticed  hereafter. 

Where  the  right  of  the  wrongdoer  is  qualified,  as  where  he 
owns  property  subject  to  a  pledge,  the  interest  of  the  creditor  is 


556  THE  LAW  OF  PERSONAL  PROPERTY. 

not  affected.!  it  extended,  however,  to  all  kinds  of  personal  pro- 
perty, whether  in  possession  or  in  action.^  The  principle  of  for- 
feiture for  crime  did  not  extend  to  trials  in  the  court  of  admiralty 
for  crimes  committed  on  the  high  seas,  as  that  court  followed  the 
Roman  and  not  the  common  law. 

Forfeiture  may  be  claimed  under  a  contract  providing  for  it. 
This  case  is  simply  a  branch  of  the  law  of  contracts,  and  is  an 
instance  of  the  law  of  contracts. 

There  are  comparatively  few  instances  in  the  United  States  of 
forfeiture  for  crime.  There  is  in  the  United  States  Constitution 
a  clause  prohibiting  Congress  from  causing  an  attainder  of  treason 
to  work  a  forfeiture  beyond  the  life  of  the  person  attainted.* 
There  are,  however,  some  cases  of  forfeiture  for  crime  under  the 
legislation  of  Congress.  These  are,  in  the  main,  for  violation  of 
the  laws  concerning  customs  or  the  internal  revenue,  the  navi- 
gation laws,  regulations  of  vessels  engaged  in  commerce,  and 
the  laws  prohibiting  the  slave-trade.*  Regular  methods  of  trial 
are  established  for  ascertaining  the  violation  of  law,  and  for 
enforcing  forfeiture. 

Things  subject  to  forfeiture  may  be  regarded  as  of  three  distinct 
classes,  (1)    Those  to  which  some  crime   or  guilt  is  attributed. 

(2)  Those  which  are  considered  as  having  a  hostile  character. 

(3)  Those  which  are  treated  as  liable  for  a  debt.  In  the  first 
class  of  cases  there  is  a  species  of  legal  fiction  that  the  chattel 
is  itself  an  offender ;  it  is  "  guilty,"  and  yet  the  sole  object  of  the 
fiction  is  to  justify  a  legal  proceeding  against  it,  and  to  change  its 
ownership,  —  for  example,  to  take  it  from  the  existing  owner  and 
transfer  it  to  the  United  States.  A  forfeiture  may  thus  happen 
for  a  prohibited  act  though  the  owner  is  himself  personally 
innocent.^ 

In  proceedings  under  the  laws  of  the  United  States,  the  doc- 
trine of  "  relation  "  assumes  great  prominence.  The  condemna- 
tion will  relate  back,  not  merely  to  the  seizure,  but  to  the  wrongful 
act  which  was  the  ground  of  the  seizure.  The  title  of  a  purchaser 
in  good  faith  will,  accordingly,  be  subverted.^     This  rule  met  with 

1  13  Vin.  Abr.  443,  Tit.  Forfeiture.  is  found  in  the   Revised   Statutes,   Title 

2  Hawk.,  P.  C.  638,  Cap.  49,  §  9  (6th  XXXV,  Internal  Revenue,  and  amenda- 
Lond.  Ed.).  tory   acts.     The   distillery   itself  may  be 

3  Art.  III.  §  3.  destroyed  in  certain  cases,  so  as  to  pre- 
*  Forfeiture  for  breach  of  customs  laws     vent  the  use  of  it  for  the  purpose  of  dis- 

is  provided  for  in  Title  XXXIV.   of  the  tilling,   §  3332.     The  statutes  should  be 

Revised   Statutes.     There  will  be  no  for-  examined  for  further  details. 

feiture  for  errors  happening  by  mistake  or  "  United  States  v.  Brig  Maleck  Adhel, 

accident  and  not  from  any  intention  to  2  How.  U.  S.  210,  234. 

defraud  the  revenue  §  3051.     The  punish-  ^  United   States  v.    Bags  of    Coffee,   8 

ment  for  violation  of  internal  revenue  laws  Cranch,  398;  United  States  v.  The  Brig- 


TITLE    BY   ACT   OF   THE   LAW.  557 

vigorous  opposition  from  Judge  Story  in  the  cases  cited,  who  would 
date  the  forfeiture  from  the  time  of  conviction.  The  title  obtained 
by  the  forfeiture  is  a  new  one,  and  not  merely  a  continuation  of 
tho  old  one. 

Forfeiture  applies  to  admiralty  law,  both  in  prize  cases  and  in 
the  enforcement  of  maritime  liens,  as  for  collision,  and  the  like. 
The  discussion  of  these,  so  far  as  they  have  special  features,  will 
be  considered  hereafter.  The  legal  proceeding  to  cause  a  forfei- 
ture is  called  an  action  in  I'em,  or  against  the  thing,  as  distinguished 
from  an  action  against  the  person,  or  in  personam.  This  proceed- 
ino-  will  be  considered  more  fully  hereafter,  under  the  topic  of 
judgments. 


DIVISION   II.  —  State  Succession  or  Escheat. 

This  subject  is  analogous  to  title  by  escheat  in  the  case  of  real 
property.  It  is  a  well  settled  rule  of  the  common  law,  in  the  case 
of  real  property,  that  if  an  owner  dies  without  heirs,  the  land 
escheats  to  the  State,  as  being  property  without  an  owner.  In 
the  case  of  personal  property,  goods  without  an  owner  {bona  va- 
cantia^ in  some  instances  belonged  to  the  finder,  and  in  others,  to 
the  sovereign.  Instances  of  the  latter  were  treasure-trove,  ship- 
wrecks, and  estrays. 

Much  controversy  has  arisen  in  respect  to  succession  to  personal 
property,  where  an  owner  dies  intestate  and  without  successors, 
such  as  husband,  wife,  or  next  of  kin.  It  was  the  view  of  Lord 
Coke  that  such  property  inured  to  the  king,  as  a  branch  of  the 
royal  prerogative.^  This  view  is  stoutly  resisted  by  the  great 
antiquarian,  John  Selden,  who  insists  that  Lord  Coke  wrongly 
interpreted  the  authority  that  he  cited.^ 

It  has,  however,  in  modern  times,  been  decided  by  the  Privy 
Council  in  England,  that  the  right  to  goods  belonging  to  persons 
dying  intestate,  and  without  leaving  husband  or  widow,  and  with- 
out kindred,  as  ho7ia  vacantia.,  has  from  the  earliest  times  been 
vested  in  the  king,  in  right  of  his  crown,  and  that  the  Church 
never  had,  at  any  time,  by  law,  any  beneficial  interest  in  the 
property  of   intestates,  but   only   the   right   of  jurisdiction  and 

antiue   Mars,  Id.   417.     The  majority  of  not  divest  the  title  of  a  purchaser  in  good 

the  court  were  of  the  opinion  that  they  faith. 

were  bound  by  express  words  in  the  statute.  ^  Hensloe's  Case,  Coke's  Rep.,  Part  9, 

Justice  Story  held  that  the  words  of  the  36  J,  at  p.  38  ^  citing  "Close  Rolls,"  7 

statute  must  be  interpreted   according  to  Hen.  III.  m.  16. 

the  rules  of  the  common  law,  which  did         ^  Selden's  Works,  Vol.  6,  p.  1681. 


558  THE  LAW  OF  PERSONAL  PROPEKTY. 

administration.!     in  this  country  the  matter  is  governed  by  stat- 
utes in  the  respective  States. 

In  the  State  of  New  York  there  is,  in  two  of  the  counties  (New 
York  and  Kings),  an  officer  called  a  public  administrator,  whose 
duty  it  is,  among  other  things,  to  take  charge  of  vacant  estates. 
They  proceed  substantially  as  other  administrators,  and  pay  any 
surplus,  after  discharge  of  fees  and  expenses,  into  the  city  trea- 
surv.(rt)  In  the  other  counties  a  similar  service  is  performed  by 
the'county  treasurer.  Surplus  moneys  in  this  case  are  paid  into 
the  State  treasury. (b) 

DIVISION   III.  —  Taxation. 

This  mode  of  obtaining  title  applies  both  to  real  and  personal 
property.  It  is  a  matter  of  statute  regulation,  which  branches 
out  into  much  detail.  Taxation  as  affecting  personal  property 
only  is  considered  here. 

The  tax  may  be  levied  on  real  property,  and  yet  be  collected 
from  the  taxpayer's  personal  estate.  There  is  first  an  assessment 
of  the  amount  to  be  paid  according  to  a  fixed  and  equitable  propor- 
tion, by  public  officers  termed  assessors.  They  proceed  judicially 
upon  due  inquiry.  They  are  not  personally  liable  for  errors  of 
judgment,  though  they  are  for  wilful  misconduct.^  If  the  tax  is 
not  paid  within  the  prescribed  time,  a  warrant  is  issued  to  a  col- 
lector, who  proceeds  to  seize  upon  or  "  distrain  "  the  property  of 
the  taxpayer,  whether  it  be  money  or  goods.  In  the  case  of  goods, 
there  would  be  a  public  sale,  the  tax  would  be  paid  from  the  pro- 
ceeds, and  the  overplus  returned  to  the  owner.^ 

The  collection  of  taxes  to  be  paid  to  the  United  States  under 
internal  revenue  laws  is  regulated  by  the  Revised  Statutes.*     Cer~ 

1  Dyke  v.  Walford,  5  Moore,  P.  C.  C.  tenced  to  the  pillory  in  the  county  where 
434  (1846).  the  offence   was  committed.       The   court 

2  Queen  v.  Buck,  6  Mod.  306.  This  is  said  the  offence  deserved  exemplary  punish- 
an  old  case,  where  the  collectors  and  asses-  ment. 

sors  omitted  some  from  their  books  whom  ^  East    India     Company    v.    Skinner, 

they  nevertheless    assessed,  and   put   the  Comberbach's  Rep.  342. 

money  in  their  own  pockets.     They  were  *  Tit.  XXXV.     See  especially,  §  3187. 
adjudged  guilty  of  a  misdemeanor,  and  sen- 

(a)  The  law  in  New  York  relative  to  Procedure,  §§  2665-2669.     Provisions  re- 

the  disposition  of  vacant  estates,  as  stated  lating  to  the  office  of  public  administrator 

in   the   text,   was   formerly  found  in  the  in  the  city  and  county  of  New  York  may 

Revised  Statutes,  Part  IL,  Ch.  VL,  Tit.  be  found  in  the  Consolidation  Act,  §§  216- 

VL     These  provisions  were,  however,  re-  247.       In   the   county    of  Kings   surplus 

pealed  by  ch.  686,  Laws  of  1893.     This  moneys  are  paid  into  the  State  trea.sury. 
act  re-enacted  much  of  the  old  law,  in  the  (6)  Code  of  Civ.  Pro.  §§  2668,  2747. 

form  of  amendments  to  the  Code  of  Civil 


TITLE    BY    ACT    OF   THE   LAW.  559 

tain  specified  articles  are  exempt  from  distraint.  In  case  of  sale, 
the  collector  gives  a  certificate  of  sale,  which  is  made  conclusive 
evidence  of  the  regularity  of  his  proceedings  in  making  the  sale.^ 
The  subject  in  New  York  and  other  States  is  fully  regulated  by 
statute. 2 


DIVISION   IV.  —  Eminent  Domain. 

The  right  of  a  State  or  of  the  United  States  to  take  the  prop- 
erty of  an  individual  owner  on  this  ground,  includes  both  real  and 
personal  property.  The  right  is  inseparably  attached  to  national 
empire  and  sovereignty.^  All  kinds  of  property  are  subject  to  the 
right.*  The  occasion  for  taking  personal  property  in  this  manner 
is,  however,  rare.  One  of  the  very  early  cases  in  which  the  right 
was  asserted  is  the  famous  Saltpetre  Case,  in  which  the  court  vin- 
dicated the  right  of  the  "Commonwealth"  to  take  property  in 
time  of  war.^ 

Personal  property,  as  well  as  real  estate,  is  protected  by  the  con- 
stitutional provision  that  private  property  is  not  to  be  taken  for 
public  use  without  just  compensation.*^  This  kind  of  property 
may  be  destroyed  without  compensation  in  cases  of  inevitable 
necessity,  as  to  arrest  the  spread  of  a  conflagration.'^  A  provision 
requiring  a  particular  county  to  issue  bonds  for  an  improvement 
in  which  the  State,  as  a  whole,  is  interested,  is  not  a  case  of  emi- 
nent domain,  but  rather  of  taxation.^ 

In  the  exercise  of  the  right  of  eminent  domain,  there  is  nothing 
in  the  nature  of  a  contract  between  the  owner  and  the  State.  It  is 
only  necessary  that  compensation  be  made,  and  then  the  owner's 
property  can  be  taken  without  his  assent.^  If  the  property  be 
taken  by  "  due  process  of  law,"  —  that  is,  by  judicial  inquiry  and 
condemnation,  with  due  notice  to  the  owner,  —  the  title  of  the 
original  owner  will  be  divested,  and  the  State  or  its  appointee  will 
be  substituted  as  owner. 

1  U.  S.  Rev.  St.  §  3194.  s  Coke's  Rep.,  Part  12,  p.  12. 

2  For  the  law  of  New  York,  see  the  «  People  v.  Mayor,  &c.  of  Brooklyn,  9 
Revised  Statutes  of  that  State  (8th  ed.),     Barb.  535. 

pp.  1116,  et  seq.     The  collector  proceeds  '^  American  Print  Works  v.  Lawrence, 

under  a  tax  list  and  warrant,  distrains,  3  Zab.  9  ;  Hale  v.  Lawrence,   Id.   590  ;  1 

sells,  and  pays  any  surplus  to  the  owner,  Id.  714.     Ante,  pp.  430,  431. 

pp.  1116,  1117.     There  are  special  rules  8  County  of  Mobile   v.    Kimball,    102 

for  the  assessment  of  taxes  on  incorporated  U.  S.  691. 

companies,  pp.  1149-1159.  9  Garrison  v.  City  of  New  York,    21 

3  Jones  V.  Walker,  2  Paine,  C.  Ct.  688.  Wall.  196. 

4  New  York,  &c.   R.  R.  Co.  v.  Boston, 
&c.  R.  R.  Co.,  36  Conn.  196. 


560  THE  LAW  OF  PERSONAL  PROPERTY. 


DIVISION  y.  —  Title  hy  Judgment. 

The  word  "  judgment "  is  used  in  this  connection  in  a  broad 
sense  and  is  intended  to  include  all  judicial  determinations  of 
legal  proceedings  whereby  the  title  to  property  may  pass.  Judg^ 
ments  are  commonly  divided  into  two  principal  classes,  in  per- 
sonam and  in  rem. 

(1)  Judgments  in  personam.  These  are  the  results  of  actions  or 
other  proceedings  against  persons  who  are  expressly  or  tacitly  in- 
cluded in  the  litigation.  The  word  "  judgment "  is  more  properly 
applied  to  an  action  in  a  court  of  law,  the  result  of  a  suit  in  equity 
being  regularly  called  a  "  decree."  It  is,  however,  common  in  this 
country  to  call  each  a  "  judgment." 

A  judgment  in  p)ersonam  is  in  its  nature  a  judicial  declaration 
that  a  certain  thing  is  to  be  done  by  a  party  to  an  action,—  as, 
for  example,  to  pay  a  sum  of  money.  This  declaration  does  not 
work  out  its  own  result.  It  remains  a  declaration  and  nothing 
more,  unless  it  is  carried  into  effect  by  the  executive  branch  of  the 
government,  through  a  writ  called  an  "  execution,"  addressed  in  the 
name  of  the  people  to  the  sheriff  or  other  officer  of  the  county, 
requiring  him  to  carry  the  judgment  into  effect,  either  by  selling 
the  property  of  the  debtor,  or  taking  him  personally  into  custody, 
or  delivering  specific  property  to  the  successful  party,  as  the  case 
may  be.  An  execution  is  thus  vitally  connected  with  such  a 
judgment.  Lord  Coke  says  an  execution  is  the  life  of  the  law, 
and  the  fruit  and  life  of  every  suit.  In  an  equity  case,  instead  of 
an  execution  there  will  be  a  requirement  by  the  court  that  the 
prescribed  act  be  done,  —  e.  t/.,  that  a  deed  be  executed,  or  that 
the  party  refrain  from  doing  a  forbidden  act.  If  this  direction 
be  disregarded,  the  party  will  be  deemed  guilty  of  a  contempt  of 
<;ourt,  and  treated  accordingly. 

It  has  been  strongly  claimed  that  there  is  one  instance  in  which 
a  judgment  in  personam  changes  the  title  to  property.  This  is 
where  personal  property  has  been  wrongfully  converted  to  the  use 
of  another,  and  the  owner  brings  an  action  and  recovers  its  value. 
The  argument  is,  that  the  property  vests  at  once  in  the  wrongdoer, 
and  the  former  owner  has  only  the  judgment.  The  more  correct 
view  is,  that  the  title  does  not  pass  by  the  mere  force  of  the  judg- 
ment, but  only  when  that  has  been  paid.^ 

1  The  diflBculty  in  this  case  grows  out  disregard  the  act  of  conversion,  and  claim 

of  the  election   of  remedies.      When   an  his  property.     Having  elected  to  sue  for 

owner's  property  is  thus  converted  to  the  the  value,  and  obtained  judgment,  he  is 

use  of  another,   he  has  a  choice  of  reme-  estopped   from    bringing   an   independent 

dies ;  he  may  either  sue  for  the  value,  or  action    to    recover    the    property    itself. 


TITLE    BY    ACT    OF    THE    LAW. 


561 


There  appears  to  be  no  exception  to  the  rule  that  a  judgment 
for  a  mere  sum  of  money  is  but  an  incorporeal  right,  vesting  no 
title  to  property  other  than  the  ownership  of  the  judgment  itself. 
Where  the  judgment,  though  against  a  person,  is  for  the  delivery  of 
a  specific  thing,  such  as  for  specific  coin  in  a  box  or  a  particular 
chattel,  it  vests  a  title,  while  the  office  of  the  execution  in  that 
case  is  to  put  the  owner  into  possession  of  the  thing  to  -which  he 
is  already  entitled  by  force  of  the  judgment. 

(2)  Judgments  in  rem.  Such  a  judgment  is  the  result  of  an 
action  against  a  particular  thing.  A  chattel  is,  as  it  were,  per- 
sonified, and  becomes  a  defendant  in  the  action.  This  theory  is 
resorted  to,  not  only  in  cases  of  forfeiture,  already  referred  to, 
but  in  case  of  ships  and  other  property,  as  hostile  or  contraband 
in  time  of  war,  or  in  the  enforcement  of  liens  in  civil  cases  in 
courts  of  admiralty,  as  for  salvage,  seamen's  wages,  collision,  etc. 
A  mode  is  provided  whereby  an  owner,  though  not  sued,  is  noti- 
fied of  the  pendency  of  the  action,  with  a  corresponding  liberty 
to  make  his  defence.     Notice  is  of  the  essence  of  the  proceeding. 


Still,  it  does  not  follow  from  this  reason- 
ing that  the  oivnership  passes.  The  most 
that  can  be  said  is,  that  no  other  action  can 
be  brought  against  the  same  party,  or 
those  in  privity  with  him  (Hatch  v.  Cod- 
•dington,  32  Minn.  92),  while  the  judgment 
remains  outstanding.  The  title,  accord- 
ingly, is  unchanged.  This  would  appear 
to  be  well  shown  by  the  exercise  of  the 
right  of  recaption,  which  would  apparently 
still  exist  in  favor  of  the  owner,  though  he 
could  not  resort  to  a  new  proceeding  in 
court.  (As  to  ' '  recaption  "  by  the  act  of 
an  owner  without  legal  proceedings,  see 
Blackstone's  Com.  Book  III.  chap.  I. 
par.  ii.)  Drake  v.  Mitchell,  3  East,  251, 
258.  Brinsmead  v.  Harrison,  L.  R.  6 
C.  P.  584,  is  an  important  and  well- 
reasoned  case,  maintaining  that  no  title 
passes  until  satisfaction  of  the  damages 
ias  been  made  (p.  587).  The  argument 
is,  that  the  proceeding  is  not  in  rem,  and 
that  it  has  no  specific  effect  upon  the  goods 
(p.  588).  At  most,  there  is  but  an  assess- 
ment of  their  value.  A  case  in  Jenkins' 
Centuries  (4th  Cent.,  Case  88),  is  ap- 
proved, as  well  as  Cooper  v.  Shepherd, 
3  0.  B.  266,  while  a  dictum  of  Jervis, 
C.  J.,  in  Buckland  v.  Johnson,  15  C.  B. 
145,  157,  is  disapproved.  This  point 
has  soiiietimes  been  considered  in  connec- 
tion with  the  question  whether,  if  there 
be  two  or  more  persons  jointly  liable  for 


a  trespass  to  property  or  a  conversion  of  it, 
and  an  action  be  brought  against  one  and 
judgment  obtained  without  satisfaction,  it 
is  a  bar  to  an  action  against  the  others. 
There  is,  however,  no  necessary  connection 
between  the  two  questions  :  one  is  a  matter 
of  the  transfer  of  property  valid  as  to  all 
persons,  strangers  as  well  as  parties  to  the 
action;  the  other  is  a  question  between 
the  parties  and  those  in  privity  with  them. 
See  remarks  in  Brinsmead  v.  Harrison 
(in  Exch.  Cham.),  L.  R.  7  C.  P.  547. 

On  the  last  point  the  authorities  are  in 
a  hopeless  state  of  confusion.  Cases  taking 
the  view  that  the  former  judgment,  without 
satisfaction  is  a  bar  to  the  action  against  the 
joint  wrongdoer  are  King  v.  Hoare,  13  M. 
&  W.  494  ;  Brinsmead  v.  Harrison,  supra, 
both  in  C.  P.  and  Exch.  Cham.;  Hunt  v. 
Bates,  7  R.  I.  217  ;  Kenyon  v.  Woodruff, 
33  Mich.  310.  The  opposite  view  is  main- 
tained in  Lovejoy  v.  Murray,  3  Wall.  1; 
Livingston  v.  Bishop,  1  Johns.  290  ;  Shel- 
don V.  Kibbe,  3  Conn.  214  :  Elliott  v.  Hay- 
den,  1 04  Mass.  180.  It  is,  however,  admitted 
in  all  the  cases  that  on  satisfaction  of  the 
judgment  the  title  passes,  on  the  principle 
that  the  payment  of  the  amount  awarded  is 
equivalent  to  the  payment  of  the  price  on 
a  purchase.  So  a  payment  by  one  joint 
wrongdoer  is  available  to  another.  Knapp 
V.  Roche,  94  X.  Y.  329,  334,  and  cases 
cited.     Lnce  v.  Dexter,  135  Mass.  23. 


36 


562  THE  LAW  OF  PEKSONAL  PKOPERTY. 

This  may  take  place,  on  the  one  hand,  by  the  seizure  of  the  goods, 
and  on  the  other,  by  posted  placard  or  by  advertisement.  The 
seizure  is  in  general  supposed  to  be  sufficient  for  the  owner  ;  and 
the  advertisement,  for  others.  The  officer  who  makes  the  seizure 
should  make  return  to  the  court  of  the  fact,  and  of  any  required 
notice.  Sometimes  the  mode  of  giving  notice  is  regulated  by  rule 
of  court,  —  as,  for  example,  by  the  ninth  rule  in  admiralty. ^ 

Assuming  that  everything  is  regularly  done,  a  judgment  against 
the  thing  changes  the  status,  condition,  or  ownership  of  the  thing 
by  its  own  force.  It  needs  no  execution  to  accomplish  the  result. 
This  is  a  true  case  of  title  by  judgment,  and  is  said  to  bind  all  the 
world.  There  is  now  a  new  title,  without  reference  to  the  former 
one,  which  is  extinguished.^ 

DIVISION  YI.  —  Title  from  a  Failing  Debtor. 

The  cases  upon  this  subject  may  be  arranged  under  two  general 
heads,  —  one,  where  the  debtor  by  his  own  act  provides  how  his 
property  shall  be  used  in  payment  of  his  debts,  or  enters  into  an 
arrangement  with  one  or  more  creditors  for  a  compromise  or 
composition ;  the  other,  where  the  matter  is  adjusted  by  a  court 
or  tribunal  having  jurisdiction  over  the  subject. 

Section  I.  Volmitary  Assignments  and  Coinposition  Deeds.  — 
I.  Voluntary  assignments.  —  These  may  be  divided  into  two  kinds, 
—  preferential  and  non-preferential. 

Preferential  assignments.  —  It  is  a  rule  of  the  common  law  that 
a  debtor  having  several  creditors  may  lawfully  pay  directly  one 
or  more  to  the  exclusion  of  the  others.  The  creditors  passed  over 
cannot  complain,  as  there  is  no  fraud  or  wrong  in  discharging  a 
debt.  This  rule  may  be  affected  by  insolvency  or  bankruptcy. 
In  the  absence  of  contravening  legislation,  it  exists. 

In  a  preferential  assignment  the  debtor  does  not  make  direct 
payment  to  favorite  creditors,  but  acts  through  the  medium  of  a 
trustee,  commonly  called  an  assignee.  The  substance  of  such  an 
assignment  is,  that  the  debtor  conveys  his  estate  to  the  assignee, 
directing  him  to  convert  it  into  money,  and  to  pay  the  creditors 
according  to  a  classification  which  he  points  out,  paying  the  first 
class  in  full  before  the  second  class  is  reached,  and  so  on  from 
class  to  class  until  the  fund  is  exhausted. 

There  will  be  two  general  points  to  be  considered:  (1)  The 
validity  of  the  assignment ;  (2)  Its  nature  and  effect. 

1  "Waples  on  Proceedings  in  Rem,  Book  ston  v.  Hoyt,  3  "Wheat.  246,  318  ;  Waples 
I.  chap.  7.  on  Proceedings  in  Rem,  Book  I.  chap.  15. 

2  Williams  v.  Armroyd,  7  Cr.  423  ;  Gel- 


TITLE    BY   ACT    OF   THE    LAW.  563 

(1)  There  may  be  a  valid  objection  to  the  assignment,  on  the 
ground  that  it  is  so  drawn  as  to  hinder,  delay,  and  defraud  credi- 
tors. Of  course,  such  an  objection  would  only  be  taken  by  such 
creditors  as  deemed  their  interests  to  be  prejudiced  by  the  assign- 
ment or  its  preferences.  Modern  judicial  opinion  does  not  favor 
such  an  assignment ;  at  most,  it  only  tolerates  it.  Accordhigly,  it 
is  kept  within  strict  and  confined  limits. 

Such  an  assignment  will  be  void  as  a  mere  matter  of  law  for 
the  following  presumably  fraudulent  provisions :  for  allowing  an 
assignee  to  sell  on  credit,  or  reserving  the  power  to  the  debtor 
to  interfere  in  the  future  with  the  distribution  of  his  estate  among 
creditors ;  ^  or  by  authorizing  the  assignee  to  compromise  with 
the  assignor's  creditors ;  ^  or  by  requiring  full  releases  from  cred- 
itors paid  in  part.^  An  assignment  void  on  such  grounds  affords 
no  protection  to  the  assignee  against  a  sheriff  who  seeks  to  en- 
force by  execution  a  judgment  against  the  debtor.  The  debtor 
must  devote  his  property  absolutely  and  unconditionally  to  the 
payment  of  his  debts. 

Again,  the  assignment  may  be  void  for  "  extrinsic  "  reasons,  — 
that  is,  not  appearing  on  the  face  of  the  instrument.  This  will 
raise  the  question  of  the  intent  of  the  assignor,  and  requires  evi- 
dence, and  is  a  matter  of  fact  rather  than  of  law.  If  the  assign- 
ment be  free  from  fraud,  it  will  not  be  void  because  it  incidentally 
and  inevitably  hinders  and  delays  creditors.* 

In  a  number  of  the  States  these  transactions  are  not  upheld,  on 
account  of  their  assumed  repugnance  to  a  rule  of  fair  and  propor- 
tional distribution  of  the  assets  of  an  insolvent  debtor  among  his 
creditors.  It  should  be  added  that  when  a  bankrupt  law  of  the 
United  States  is  in  force,  voluntary  assignments  under  State  laws 
must  give  way.^ 

In  the  State  of  New  York  the  mode  of  making  such  an  assign- 
ment is  regulated  by  statute.^ 

1  Kerchies  v.  Soliloss,  49  How.  Pr.  284.  assignment  of  a  fund  or  of  particular  speci- 

2  McConnell  v.  Sherwood,  84  N.  Y.  522.  tied   assets.      Tieme3'-er  v.   Turnquist,    85 

3  Wakeman  v.  Grover,  4  Paige,  23;  (on  N.  Y.  516.  Nor  does  it  extend  to  assign- 
appeal)  Grover  v.  Wakeman,  11  Wend,  ments  made  bj' non-residents  according  to 
187.  the  law  of  their  domicile,  even  though  there 

*  Hanselt  v.  Vilmar,  76  N.  Y.  630.  may  be  assets  in  New  York.     The  details 

*  U.  S.  Rev.  St.  §  5128,  made  void  all  are  to  be  found  in  the  laws  of  1877,  ch.  466, 
such  preferential  assignments  made  within  amended  by  the  Laws  of  1878,  ch.  318; 
four  months  before  the  filing  of  a  petition  1884,  ch.  328  ;  1885,  eh.  380  and  464  ; 
in  bankruptcy  by  or  against  an  insolvent.  1886,  ch.  283  ;  1888,  ch.  294. 

This  law  having  been  repealed,  the  right  An  important  law,  passed  in  1887,  limits 

to  make  assignments  revived.  the  right  to  make  preferential  general  as- 

6  This   legislation   regulates  a  general  signments  (other  than  for  wages  or  salaries 

assignment,  and  does  not  include  a  mere  of  employees)  to  the  amount  of  one  third 


564 


THE  LAW  OF  PERSONAL  PROPERTY. 


An  assignment  under  State  laws  is  subject  to  the  laws  of  the 
United  States,  giving  a  preference  or  priority  to  that  government 
ill  respect  to  debts  due  to  it/  In  such  a  case,  an  assignment  not 
providing  for  the  payment  of  Federal  debts  would  be  subverted 


in  value  of  the  assigned  estate.  If  one 
third  is  insuiiieient  to  pay  the  preferred 
creditors,  that  amount  must  be  divided 
among  them  pro  rata.  Laws  of  1887, 
ch.  503,  referring  to  ch.  328,  Laws  of  1884, 
and  ch.  283,  Laws  of  1886.  (a) 

For  tlie  provisions  of  the  law  of  N"evv 
Yoik  relating  to  conveyances  made  with 
intent  to  defraud  creditors,  see  Kev.  Stats. 


(a)  The  general  assignment  act  of  New 
York  does  not  apply  to  a  specific  assign- 
ment for  the  benefit  of  one  or  a  portion  of 
the  debtor's  creditors.  Eoyer  Wheel  Co. 
V.  Fielding,  101  N.  Y.  504.  The  debtor 
may,  also,  notwithstanding  the  statute  of 
1887,  give  a  preference  by  a  confession  or 
offer  of  judgment.  Such  preferences,  if 
made  without  fraud,  and  not  a  part  of  a 
scheme  for  a  general  assignment,  are  up- 
held to  any  extent,  since  the  statute  only 
applies  to  general  assignments.  Central 
Natl.  Bank  v.  Seligman,  138  N.  Y.  435. 

If  in  contemplation  of  an  assignment, 
and  as  a  part  of  the  same  transaction,  a 
special  transfer  is  made,  or  a  judgment  is 
confessed,  which  results  in  a  preference 
forbidden  by  the  statute  of  1887,  the 
transfer  or  judgment  may  be  set  aside, 
and  the  preferred  creditor  be  compelled 
to  account  for  the  unauthorized  excess. 
Berger  v.  Varrelmann,   127  N.  Y.  281. 

The  assignment,  in  the  absence  of  fraud, 
is  allowed  to  stand,  the  statute  merely 
operating  to  reduce  the  amount  secured 
to  the  preferred  creditor  to  the  limit  al- 
lowed. Central  Natl.  Bank  v.  Seligman, 
supra.  The  preference  will,  however,  not 
be  disturbed  if  the  creditor,  when  accepting 
the  security,  had  no  knowledge  that  the 
debtor  intended  to  make  an  assignment. 
Manning  v.  Beck.  129  N.  Y.  1. 

Many  other  States  have  passed  laws 
regulating  or  prohibiting  preferences  in 
general  assignments.  In  construing  these 
statutes,  the  rule  has  become  well  estab- 
lished that  it  is  not  necessary  that  the 
preference  be  found  in  the  deed  of  assign- 
ment itself  in  order  to  offend  the  statute. 
It  may  be  secured  by  a  separate  instru- 
ment or  by  a  confession  of  judgment,  and 


Part  II.  Ch.  VII.  Tit.  I.  and  III.  The 
right  of  an  executor,  assignee,  or  other 
trustee,  to  attack  a  conveyance,  as  being 
in  fraud  of  the  estate  he  repi'esents,  is  regu- 
lated by  ch.  487,  Laws  of  1889,  amending 
ch.  314,  Laws  of  1858.  (i) 

1  Laws  of  1797,  ch.  20;  1799,  ch.  22; 
U.  S.  Rev.  St.  §  3466. 


still  be  held  void  as  being  in  reality  a  part 
of  the  assignment. 

There  are,  accordingly,  many  decisions 
to  the  effect  that  where  the  debtor,  in  con- 
templation of  making  an  assignment,  and 
for  the  purpose  of  giving  a  preference  not 
allowed  by  statute,  transfers  separately  a 
portion  of  his  estate  and  then  assigns  the 
residue,  the  preference  will  be  void.  Berry 
V.  Cutts,  42  Me.  445;  Van  Patten  v.  Bun-, 
52  la.  518;  Holt  v.  Bancroft,  30  Ala.  193; 
Hardware  Co.  v.  Implement  Co.,  47  Kan. 
423;  Watkins  National  Bank  y.  Sands,  Id. 
591;  Backhaus  v.  Sleeper,  66  Wis.  68; 
Preston  v.  Spaulding,  120  111.  208;  Home 
National  Bank  v.  Sanchez,  131  111.  330. 
Other  authorities  regard  the  intent  of  the 
debtor  as  immaterial,  and  uphold  prefer- 
ences made  outside  of  and  separate  from 
the  assignment,  if,  when  they  were  made, 
the  debtor  still  had  dominion  over  his 
property,  even  though  a  contemplated  as- 
signment immediately  follow.  Lake  Shore 
Banking  Co.  v.  Fuller,  110  Pa.  St.  156  ; 
Carnahan  v.  Schwab,  127  Ind.  507  ;  The 
John  Shillito  Co.  v.  McConnell,  180  Ind. 
41 ;  Cro.ss  v.  Carstens,  49  Ohio  St.  548. 
The  tendency  of  the  later  decisions  is  to 
give  a  strict  construction  to  statutes  for- 
bidding preferences,  and  where  fraud  does 
not  exist,  to  uphold  preferences.  The  rule 
asserted  in  White  v.  Cotzhausen,  129  U.  S. 
329,  that  statutes  against  preferences 
should  be  liberally  construed,  with  a  view 
to  securing  equality  of  rights  among  all 
the  creditors,  has  not  met  with  favor. 
Farwell  v.  Nillson,  133  111.  45  ;  Moore  v. 
Meyer,  47  Fed.  R.  99. 

(h)  Spelman  v.  Freedman,  130  N.  Y. 
421. 


TITLE    BY    ACT    OF    THE    LAAV.  565 

to  the  extent  necessary  to  provide  for  the  payment  in  full  of 
debts  due  the  United  States. 

(2)  The  effect  of  a  voluntary  assignment  of  this  kind  is  to  create 
a  trust.  The  assignee  is  a  trustee,  and  the  creditors  are  bene- 
ficiaries or  eestuis  que  trustent.  Like  other  trustees,  the  assignee 
is  held  liable  to  an  accounting  in  a  court  of  equity.  He  must 
use  due  diligence,  and  is  liable  for  the  absence  of  that  care  which 
prudent  men  use  in  their  own  affairs.  He  is  not  permitted  to 
secure  any  benefit  to  himself  from  the  management  of  the  estate. 
The  details  may  be  pursued  in  works  upon  equity  jurisprudence. 
There  are  also  statutory  rules  which  should  be  consulted.^ 

Non-preferential  assignments.  —  Such  an  assignjnent  may  be 
made  with  a  view  of  dividing  the  debtor's  estate  among  creditors 
ratably.  The  general  rules  of  the  law  of  trusts  would  be  appli- 
cable also  to  this  case.  Such  an  assignment  is  in  accordance 
with  the  general  principles  of  insolvent  and  bankrupt  laws,  and 
would  be  likely  to  be  upheld  in  States  opposed  to  the  methods  of 
preferential  assignments. 

II.  Composition  deeds.  —  This  is  an  instrument  (commonly 
under  seal)  signed  by  creditors,  whereby  they  mutually  agree  to 
accept  from  a  debtor  less  than  their  just  demands,  —  as,  for  exam- 
ple, to  take  a  percentage  on  their  claims.^ 

It  is  necessary  to  distinguish  between  such  a  concession  by  a 
single  creditor,  simply,  and  one  by  two  or  more.  If  the  conces- 
sion be  by  one,  there  must  be  some  consideration  as  between  the 
debtor  or  creditor,  or  the  promise  of  the  latter  will  not  be  bind- 
ing. It  is  quite  plain  that  if  a  creditor  should  simply  promise 
a  debtor  that  he  would  forego  his  entire  claim,  there  would  be 
a  mere  naked  promise,  which  would  not  be  legally  binding.  A 
small  consideration  would  suffice.  The  same  rule  is  applicable 
to  a  reduction  of  the  amount  of  the  claim.  The  consideration 
may  be  payment  before  the  debt  is  due,  or  any  engagement  by 
a  third  person,  or  an  item  of  property,  no  matter  how  small  in 
value.^  It  must,  however,  be  something  which  the  debtor  is  not 
already  bound  to  pay.  There  is  no  consideration  by  reason  of 
his  partial  performance  of  an  existing  obligation  at  the  time  due 
for  a  promise  to  relieve  him  from  the  performance  of  the  residue.^ 

1  See  Laws  of  New  York  already  re-  ^  gjr  George  Jessel,  in  one  ease,  sng- 
ferred  to,  ante,  pp.  563,  564.                             gested  a  "  tomtit."     Couldery  v.  Bartnun, 

2  It   seems   that   an    oral    composition     L.  R.  19  Ch.  D.  394. 

may  be  made,  though  it  would  be  injudi-  *  This  point  was  very  thoroughly  con- 

cious.    Fellows  v.  Stevens,  24  Wend.  294,  sidered  in  Foakes  v.  Beer,   L.  R.  9  App. 

297,  298,  and  cases  cited;  Chemical  Natl.  Cas.  605;  affirming  Beer  v.  Foakes,  L.  R. 

Bank  of  New  York  v.  Kohner,  85  N.  Y.  U  Q.  B.  D.  221.     This  last  case  reversed 

189  the  decision  in  52  L.  J.  (Q.  B.  D.)  426. 


566 


THE  LAW  OF  PERSONAL  PROPERTY. 


There  is  a  Avay  to  avoid  the  difficulty.  This  is  to  release 
the  debtor  by  an  instrument  under  seal,  since,  by  a  technical 
rule  of  the  common  law,  a  seal  is  conclusive  evidence  of  con- 
sideration. 

Recurring  to  the  case  of  two  or  more  creditors,  who  mutually 
agree  to  remit  a  portion  of  their  respective  claims,  and  to  accept 
a  percentage,  it  may  be  maintained  that  their  mutual  promises 
form  an  agreement  of  which  the  debtor  may  avail  himself.  A 
question  frequently  arises  as  to  the  case  where  one  of  the  credit- 
ors, appearing  to  accept  a  specified  percentage,  has  a  secret  agree- 
ment with  the  debtor  for  the  payment  of  an  additional  sum.  This 
is  deemed  to  be  a  fraud  on  the  other  creditors.^  A  note  given  for 
such  a  sum  is  void.^  It  is  a  further  rule  that  if  the  debtor  has 
paid  such  sum  as  a  condition  of  obtaining  his  creditor's  signa- 
ture, he  is  under  a  species  of  duress,  and  may  recover  back  the 
money  paid.^  (a) 

In  general,  the  creditors  may  impose  such  conditions  upon  the 
debtor  in  giving  their  assent  as  they  see  fit.  If  the  conditions 
are  not  complied  with  by  the  debtor,  the  original  cause  of  action 
revives.*  This  rule  applies  where  the  stipulated  percentage  is 
not  paid.5  (5)  If  the  composition  is  properly  made  and  faithfully 
executed,  the  court,  in  carrying  it  into  effect,  will  give  it  a  fair 
and  liberal  construction,  (c) 


The  decision  of  the  House  of  Lords  in 
L.  R.  9  App.  Cas.  is  particularly  instruc- 
tive. The  earliest  case  is  Pinnel's  Case, 
5  Rep.  117,  and  followed  by  Cumber  v. 
Wane,  1  Sm.  Lead.  Cases  (8th  ed.),  *357. 
These  decisions  are  fully  approved  in  this 
country.  Thus,  it  is  held  in  New  York 
that  a  debt  cannot  be  discharged  by  pay- 
ment of  a  part  only  without  a  release. 
Van  Valkenburgh  v.  Lenox  Fire  Ins.  Co., 
51  N.  Y.  46.5.  The  rule  perhaps  applies 
to  a  note  of  the  debtor  given  for  a  part  of 
the  debt.  Jagger  Iron  Co.  v.  Walker,  76 
N.  Y.  521.  This  ease  holds  that  such  a 
note  is  simply  evidence  of  the  debt,  and 
its  operation  is  only  to  extend  the  time  of 
payment.      The  present    English    rule   is 


(n)  Solinger  v.  Earle,  cited  in  the  note, 
is  followed,  and  the  right  of  the  debtor  to 
recover  the  amount  paid,  denied  in  Smith 
V.  Zeigler,  44  N.  Y.  St.  R.  51. 

(b)  Zoebisch  v.  Von  Minden,  120  N.  Y. 
406. 

{c)  A  debtor  may  also  in  New  York 
procure  a  discharge  from  his  debts  by  pro- 


that  a  negotiable  note  of  the  debtor  for  a 
part  of  the  debt  is  a  sufficient  considera- 
tion for  a  promise  to  discharge  the  whole 
claim.  Sibree  v.  Tripp,  15  M.  &  W.  23; 
Goddard  v.  O'Brien,  L.'r.  9  Q.  B.  D.  37. 

1  Van  Bokkelen  v.  Taylor,  62  N,  Y. 
105. 

2  Hagaman  v.  Burr,  41  N.  Y.  Super.  Ct. 
423. 

3  In  re  Lenzberg's  Policy,  L.  R.  7  Ch. 
D.  650;  Atkinson  v.  Denby,  6  H.  &  N. 
778;  s.  c.  7  Id.  934.  This  last  case  is 
questioned  by  the  Court  of  Appeals  of 
New  York  in  Solinger  v.  Earle,  82  N.  Y. 
393,  as  being  unsound  in  jirinciple. 

*  Durgin  v.  Ireland,  14  N.  Y.  322. 
5  Penniman  v.  Elliott,  27  Barb.  315. 


ceeding  under  a  statute  called  the  "  Two 
Thirds  Act."  Creditors  holding  claims 
which  amount  to  not  less  than  two-thirds 
of  all  the  debts  owing  by  the  debtor  to 
creditors  residing  in  the  United  States 
must  consent  to  the  discharge.  Code  of 
Civ.  Pro.,  §§  2149-2187. 


TITLE    BY    ACT    OF    THE    LAW.  567 

Section  II.  Bankruptcy  and  Insolvency  Proceedings.  —  The 
term  "  bankrupt"  first  appears  in  the  law  in  the  reign  of  Henry 
VIII.  (a.  d.  1542-1543).^  It  then  appeared  only  in  the  title  to  the 
statute,  —  "  An  Act  against  such  persons  as  do  make  bankrupts." 
The  preamble  to  this  act  is  very  broad  and  comprehensive.  It 
is  plainly  directed  against  fraudulent  debtors  in  general,  vkdio, 
"  craftily  obtaining  into  their  hands  great  substance  of  other 
men's  goods,  do  suddenly  flee  to  parts  unknown,  or  keep  their 
houses,  not  minding  to  pay  or  restore  to  any  their  creditors  their 
debts  and  duties,  but  at  their  own  wills  and  pleasures  consume 
the  substance  obtained  by  credit  of  other  men,  for  their  own 
pleasure  and  delicate  living,  against  all  reason,  equity,  and  good 
conscience."  This  language  points  to  a  general  abuse  of  the 
credit  system  by  unscrupulous  debtors.  The  remedy  adopted  was, 
on  complaint  in  writing  to  the  Lord  Chancellor  and  other  high 
officers  named  in  the  act,  to  have  the  property  of  the  debtor 
sold,  and  the  creditors  paid  ratably.  Other  sections  provide  for 
an  examination  of  third  persons  indebted  to  them  or  having 
their  estates  in  possession,  and  against  fictitious  claims,  and  for 
fines  and  imprisonment  of  wrongdoers.  The  proceedings  do 
not  result  in  a  discharge  of  the  debtor,  but  the  creditor  may 
still  collect  what  may  remain  due  after  obtaining  his  percentage 
under  the  act. 

A  few  years  later  (1570)  a  different  policy  was  adopted.^  The 
persons  now  to  be  declared  bankrupt  are  any  merchant  or  other 
person  using  or  exercising  the  trade  of  merchandise  by  buying 
and  selling,  etc.  The  acts  of  a  fraudulent  nature  are  now  speci- 
fied, five  in  number,  among  them,  departing  from  the  country,  or 
keeping  his  house  with  intent  to  defraud  his  creditors.  Com- 
missioners in  bankruptcy  are  to  be  appointed  to  take  charge  of 
the  property,  and  to  provide  for  its  application  to  the  claims  of 
creditors. 

This  act  appears  to  be  the  germ  of  modern  bankrupt  laws.  It 
was  extended,  and  its  scope  enlarged,  by  enactments  in  the  reign 
of  James  I.^  By  the  last  of  these  statutes,  the  wife  of  the  bank- 
rupt was  allowed  to  be  examined  by  the  commissioners.  There 
was  much  further  legislation  upon  this  topic  down  to  1732,  not 
long  before  the  American  Revolution,  when  a  comprehensive  and 
improved  statute  was  adopted,*  from  which  Sir  William  Black- 
stone  draws  much  of  the  material  used  in  his  chapter  on  this 
subject.^ 

1  Stat.  34  &  35  Hen.  VIII.  c.  4.  45  Geo.  II.  c.  30. 

2  13  Eliz.  c.  7.  5  2  BL  Com.,  Tit.   Baiikraptcy,  Book 

3  1  Jac.  I.  c.  15  ;  21  Id.  c.  19  (1623).       II.  Cli.  31. 


568  THE  LAW  OF  PERSONAL  PROPERTY. 

In  all  this  legislation,  bankruptcy  was  treated  as  an  involuntarj 
proceeding  against  debtors  who  were  guilty  of  fraud  or  injustice 
toward  creditors.  Again,  not  all  fraudulent  debtors  were  subject 
to  it.  A  debtor  must  hold  in  substance  the  character  of  trader,  in 
order  to  be  within  the  act.  This  rule  continued  in  England  until 
the  vcar  1861.  Other  persons  in  debt  could  only  obtain  relief 
under  the  "  Insolvent  Debtors  Acts,"  commencing  in  the  reign  of 
William  and  JMary.^  Such  a  law  as  this  did  not  discharge  a  debtor 
from  his  debts,  but,  on  the  surrender  of  his  estate  to  assignees^ 
relieved  him  from  imprisonment.^ 

It  is  plain  from  this  general  course  of  legislation,  that  down 
to  the  time  of  the  formation  of  the  Federal  Constitution,  "  bank- 
ruptcy "and  "insolvency"  were  distinguished  from  each  other. 
Bankruptcy  was  applied  to  a  particular  class  of  debtors,  and  was 
involuntary.  Insolvency  was  applied  to  all  other  failing  debtors, 
and  was  a  voluntary  act  on  the  debtor's  part. 

These  facts  shed  light  on  the  clause  in  the  United  States  Con- 
stitution conferring  upon  Congress  power  to  pass  uniform  laws 
on  the  subject  of  bankruptcy .^  The  word  "  bankruptcy  "  fairly 
means,  as  here  used,  all  modes  of  dealing  with  an  insolvent  debt- 
or's estate,  so  as  to  appropriate  it  to  the  payment  of  his  debts, 
and  cannot  be  confined  to  its  imperfect  or  fluctuating  exercise  by 
the  English  Parliament.  It  may,  accordingly,  include  voluntary 
as  well  as  involuntary  proceedings.* 

The  power  vested  in  Congress  does  not  prevent  the  enactment 
of  insolvent  laws  by  the  respective  States.  The  only  question  of 
difficulty  is,  the  effect  of  a  conflict  between  Federal  and  State 
legislation.  As  the  power  of  Congress  over  the  subject  is  both 
plenary  and  uniform,  the  State  insolvent  laws  must  give  way  in 
such  a  case ;  their  operation  will  be  suspended.^  On  the  repeal 
of  a  United  States  bankrupt  law,  however,  a  State  law  revives. 

There  have  been  three  bankrupt  laws  passed  by  Congress  since 
the  origin  of  the  government.  They  were  enacted  respectively  in 
1800,  1841,  and  1867.6     The  statute  of  1800  was  repealed  Dec. 

1  5  &  6  Wm.  &  M.  c.  8  (1694).  ^  Silverman's  Case,  2  Abb.  U.  S.  243, 

2  2  Cxeo.  II.  c.  20  ;   2  Id.  c.  22  ;  10  Id.     s.  c.  1  Sawy.  410. 

c.  26  ;  21  Id.  c.  31,  33.     An  extended  act,  &  In  re  Reynolds,  9  Nat.  Bankr.  Reg.  50  ; 

with  carefully  drawn  provisions,  is  28  Geo.  Sturges  v.  Crowninshield,  4  Wheat.   122, 

II.  e.  13  (1755).    A  "  poor  debtor's  oath  "  is  196  ;  Ex  parte  Eames,  2  Story,  322  ;  Kun- 

sanctioned  in  this  act.     See  also  5  Geo.  III.  zler  v.   Kohai;s,  5  Hill,   317;    Sackett  v. 

c.  41  ;  12  Id.   c.   23  ;    18   Id.    c.   52.     In  Andross,  Id.  327  ;  Shears  v.  Solhinger,  10 

this  last  act  there  is  legislation  concerning  Abb.  Pr.  n.  s.  287. 

bankrupts  who   have   not   received   their  6  l^w  of  April  4,  1800  ;  2  U.  S.  Stat, 

certificates  of  discharge.  L.  19  ;  Law  of  Aug.  19,  1841  ;  5  Id.  440  ; 

3  Art.  I.  §  8,  cl.  4.  Law  of  March  2, 1867  ;  14  Id.  517  ;   (U.  S. 

Rev.  St.  (1878)  Tit.  61). 


TITLE    BY   ACT    OF    THE    LAW.  569 

19,  1803,  and  that  of  1841  on  March  3,  1843.  The  law  of  1867 
was  enacted  on  March  2,  1867 ;  amended  in  important  respects 
June  22,  1874,  and  in  its  turn  repealed,  except  as  to  pending 
cases,  June  7,  1878.^ 

Notwithstanding  its  repeal,  a  brief  discussion  of  the  last-named 
statute  is  thought  necessary.  This  is  especially  so  on  account  of 
its  influence  on  the  law  of  the  time.  Moreover,  the  decisions 
made  under  it  will  doubtless  be  resorted  to  in  giving  effect  to  any 
future  bankrupt  law  passed  by  Congress. 

(1)  The  court  having  direct  jurisdiction,  and  its  officers.  —  The 
tribunal  before  which  bankruptcy  proceedings  were  directly 
brought  was  the  District  Court.  The  United  States  is  divided 
into  convenient  districts,  in  each  of  which  a  distinct  court  is 
established,  held  by  a  single  judge.  His  decisions  upon  contested 
questions  may  be  reviewed  on  appeal  to  the  Circuit  Court.  Much 
of  the  bankrupt  business  of  a  non-contested  nature  was  transacted 
by  a  "  register,"  one  such  officer  being  appointed  in  each  Con- 
gressional district.     His  duties  were  prescribed  by  the  statute.^ 

The  Circuit  Court  had  concurrent  jurisdiction  over  controversies 
arising  between  assignees  in  bankruptcy  and  other  persons  claim- 
ing an  interest  adverse  to  the  bankrupt,^  as  well  as  a  general 
superintendence  over  all  cases  and  questions  arising  in  the 
District  Court,  when  sitting  as  a  court  of  bankruptcy.  An  appeal 
did  not  lie  to  the  Supreme  Court,  unless  the  matter  in  dispute 
exceeded  $2,000. * 

(2)  Kinds  of  Bankruptcy.  —  Voluntary  Bankruptcy.  —  This, 
in  substance,  was  a  proceeding  originating  with  a  debtor  seeking 
a  discharge  from  his  debts.  It  was  necessary  that  he  should  re- 
side within  the  jurisdiction  of  the  United  States,  and  owe  debts 
exceeding  in  amount  $300.  It  was  instituted  by  a  petition  ad- 
dressed to  the  judge  of  the  district  where  the  petitioner  had 
resided  or  carried  on  business  for  six  months  next  preceding  his 
application,  setting  forth  certain  facts  specified  in  the  statute. 
The  act  of  filing  such  a  petition  was  deemed  an  act  of  bank- 
ruptcy, and  the  statute  provided  that  thereupon  the  petitioner 
should  be  adjudged  a  bankrupt.^ 

The  judge  or  register  thereupon  issued  a  warrant  in  bankruptcy 
to  the  marshal  of  the  district,  directing  him,  as  messenger  of  the 
court,  to  publish  notices  in  newspapers  stated  in  the  warrant,  and 
to  serve  written  or  printed  notices  on  the  creditors  named  in  the 
schedule  annexed  to  the  petition  or  otherwise  ascertained.^ 

1  20  IT.  S.  Stat.  L.  99.  *  LI.  §  4989. 

2  U.  S.  Rev.  St.  §  4998.  ^  i,i.  §§  5014-5017. 

3  Id.  §  4979.  s  1,1.  §  5019. 


570  THE  LAW  OF  PERSONAL  PROPEETY. 

The  court  obtained  full  jurisdiction  over  the  subject  by  the 
petition,  adjudication,  and  warrant.^  The  proceeding  was  substan- 
tiallv  an  action  commencing  with  the  petition  and  terminating 
with'  the  judgment.  The  subsequent  proceedings  to  ascertain  and 
distribute  the  assets  were  mere  consequents  upon  the  action.^  It 
was  really  a  case  at  laiv,  not  reviewable  until  final  judgment,^  and, 
after  judgment,  beyond  the  power  of  Congress  to  set  aside. 
Where,  however,  the  want  of  jurisdiction  appeared  on  the  face  of 
the  petition,  no  consent  of  the  parties  could  confer  it.* 

Involuntary/  hanhruptcy.  —  This  form  of  bankruptcy  was,  for  the 
most  part,  based  upon  wrongful  acts  by  the  debtor,  and  resembled 
the  bankruptcy  of  the  early  English  statutes.  There  were  several 
acts  which  were  styled  acts  of  bankruptcy.  In  substance  they 
were  as  follows  :  Departing  or  remaining  absent  from  the  State  of 
the  debtor's  residence  with  intent  to  defraud  creditors,  or  remain- 
ing concealed  with  like  purpose,  or  concealing  or  removing  his 
property,  or  making  an  assignment  or  transfer  of  his  estate,  or 
making  a  preferential  assignment  to  one  or  more  of  his  creditors, 
or  acts  of  a  similar  nature.^  There  was  a  single  class  of  cases 
involving  no  wrongful  element.  This  was  where  a  banker,  or 
other  merchant  or  trader,  had  suspended  payment  of  his  com- 
mercial paper,  and  had  not  resumed  it  within  fourteen  days. 

The  proceedings  were  commenced  in  this  case  by  petition  of 
creditors  owning  claims  aggregating  $250.  The  debtor  then  had 
an  opportunity  to  show  cause  why  he  should  not  be  declared  a 
bankrupt.  At  the  appointed  time  the  question  of  bankruptcy 
could,  upon  the  debtor's  demand,  be  passed  upon  by  a  jury.  If 
the  charges  were  not  proved,  the  case  was  dismissed,  but  if  es- 
tablished, he  was  adjudicated  a  bankrupt,  and  a  warrant  forth- 
with issued  to  take  possession  of  his  estate.  In  the  event  that 
the  debtor  failed  to  appear,  judgment  went  against  him  to  the 
same  effect.^  Time  was  given  him  to  prepare  a  schedule  and  in- 
ventory in  the  form  and  verified  as  in  the  case  of  a  petitioning 
debtor.  Further  proceedings  were  substantially  the  same,  both 
in  voluntary  and  involuntary  bankruptcy." 

(3)  Proceeding  to  realize  the  estate.  —  Duties  of  the  asssignee. 
—  Tlie  adjustment  of  claims  and  the  distribution  of  assets  among 
the  creditors.  —  By  the  common  law,  any  creditor  had  the  power, 
by  the  exercise  of  superior  diligence,  to  collect  his  claim  without 

1  Re  Archenhrown,  11  Nat.  Bankr.  ■*  In  re  Hopkins  v.  Carpenter,  18  Nat. 
Reg.  149.  Bankr.  Reg.,  339. 

2  In  re  Oregon  Bulletin  Printing,  &c.  5  U.  S.  Eev.  St.  §  5021. 
Co.,  3  Sawy.  529.  6  i^i,  §§  502.3-5028. 

2  Id.,  and  In  re  Comstock,  Id.  128  "  Id.  §  5029. 


TITLE   BY   ACT    OF   THE   LAW.  571 

reference  to  the  debtor's  obligations  to  other  creditors.  By  the 
bankrupt  law,  another  principle  is  introduced,  derived  from  a 
theory  of  equity  jurisprudence,  —  the  race  for  an  advantage  is 
not  allowed,  and  the  creditors  (excepting  those  having  liens)  are 
placed  upon  a  par,  and  paid  ratably.  This  rule  appears  in  the 
very  earliest  bankrupt  law,^  and  has  been  continued  down  to  our 
time.  A  few  exceptions  are  grafted  upon  this  rule,  based  upon 
grounds  of  public  policy. 

To  accomplish  the  end  in  view,  a  trustee  or  "  assignee  "  is  re- 
sorted to,  whose  duty  it  is  to  receive  the  property,  convert  it  into 
money,  proceed  with  prudence  and  fidelity  in  the  management  of 
his  trust ;  make  partial  payments  (called  "  dividends  ")  as  sums 
of  money  are  realized,  to  the  creditors,  and  in  the  end  account  to 
the  bankruptcy  court  for  his  acts  as  trustee. 

Bankruptcy  acts  like  a  forfeiture,  and  vests  the  property  of  the 
debtor  in  the  court  as  the  instrument  of  the  State.  Different 
modes  have  been  adopted  from  time  to  time  to  vest  it  in  tlie 
assignee.  Under  the  last  bankrupt  law,  the  register  was  author- 
ized to  convey  it  by  deed  to  the  assignee.  This  conveyance  by  a 
fiction  of  law  relates  back  to  the  commencement  of  the  proceed- 
ings, and  dissolves  any  attachments  made  within  four  months 
preceding  that  time.^  This  conveyance  is  made  subject  to  cer- 
tain specified  exemptions  to  be  hereafter  considered.^  The  items 
of  property  that  passed  to  the  assignee  are  set  forth  in  §  5046  of 
the  Revised  Statutes.  Briefly,  they  include  corporeal  and  incor- 
poreal property,  and  rights  of  action  upon  contract  or  for  injuries 
to  property  or  estate,  but  not  mere  claims  for  personal  wrongs, 
such  as  assault  and  battery  or  false  imprisonment. 

The  language  of  §  5044  indicates  that  the  conveyance  carries 
with  it  all  such  property  as  the  debtor  had  at  the  commencement 
of  the  proceeding.  Accordingly,  it  has  no  effect  upon  property 
subsequently  acquired,  i.  e.,  between  the  commencement  of  the 
proceedings  and  the  discharge.  This  would  belong  to  the 
debtor. 

The  duties  of  the  assignee  may  for  the  most  part  be  ascertained 
by  resort  to  general  rules  of  law  governing  the  action  of  trustees, 
the  general  principle  being  that  he  must  use  the  same  care  and 
diligence  that  prudent  men  use  in  the  management  of  their  own 
affairs,  modified  by  any  special  rules  found  in  the  statute.* 

In  settling  claims,  the  assignee  was  obliged  to  confine  himself 
to  such  as  existed  at  the  commencement  of  the  proceedings.  No 
others  could  be  allowed,  nor  would  the  debtor  be  discharged  from 

1  34  &  35  Hen.  VIIL  c.  4.  »  Id.  5045. 

2  U.  S.  Rev.  St.  §  5044.  *  See  Id.  §§  5047-5066. 


572  THE  LAW  OF  PERSONAL  PROPERTY. 

any  arising  thereafter.  Of  those  then  existing  the  statute  enumer- 
ated five  chisses.i     Beyond  those  none  could  be  proved.^ 

Chiims  against  the  bankrupt  as  trustee  and  for  mere  personal 
rights  of  action  were  not  within  the  purview  of  the  statute. 
They  remained,  therefore,  unaffected  by  the  proceedings,  though 
in  the  latter  case,  if  the  claim  had  been  reduced  to  a  judgment,  it 
might  be  treated  as  a  debt.  Claims  sounding  in  fraud  were  not 
barred,  even  though  reduced  to  judgment.^ 

There  was  no  part  of  the  late  bankrupt  law  which  was  of  more 
doubtful  policy  than  that  which  related  to  exemptions.  The  Con- 
stitution requires  Congress  to  pass  uniform  laws  on  the  subject  of 
bankruptcy.  As  a  matter  of  fact,  it  was  found  that  there  was  at 
the  time  a  great  dift'erence  in  existing  State  legislation  as  to 
exempting  property  from  seizure  by  legal  process  for  the  payment 
of  debts.  Some  of  the  States  inclined  in  favor  of  the  creditor, 
and  allowed  few  and  meagre  exemptions.  Others  were  liberal  to 
the  debtor,  and  allowed  large  and  perhaps  unreasonable  exemp- 
tions. It  was  insisted  on  behalf  of  creditors,  that  the  law  was 
not  "  uniform  "  unless  it  established  throughout  the  country  one 
rule  for  all  creditors.  Still,  the  bankrupt  law  adapted  itself  to 
the  existing  condition  of  things  in  the  States,  and  not  only  pro- 
vided for  a  uniform  exemption,  say  to  an  amount  not  exceeding 
five  hundred  dollars,  but  in  addition,  such  exemption  as  existed 
by  State  laws  in  the  year  1871,  in  the  State  where  the  bankrupt 
was  domiciled  at  the  commencement  of  the  proceeding.*  There 
has  been  considerable  difference  of  opinion  in  the  courts  as  to  the 
constitutionality  of  this  branch  of  the  law.  It  has  been  held  that, 
in  view  of  the  doubts  on  the  subject,  the  court  would  not  be  justi- 
fied in  disregarding  it.^ 

Debts  having  been  proved  and  exemptions  allowed,  the  residue 
of  the  property  was  to  be  distributed  on  the  principle  of  propor- 
tion, with  the  exception  of  certain  preferred  claims,  which  must 
first  be  paid  in  full.  These  were  :  (1)  Fees  and  expenses  of  suits 
and  of  the  proceedings  in  bankruptcy.  (2)  Debts  due  the  United 
States,  including  taxes  and  assessments.  (3)  Debts  due  the 
State  in  which  the  proceedings  were  pending,  including  taxes  and 
assessments  made  under  its  laws.  (4)  Wages  earned  within  six 
months  before  publication  of  proceedings,  of  operatives  and  ser- 
vants, to  an  amount  not  exceeding  $50.     (5)  Debts  due  to  anj 

1  SeeU.  S.  Rev.  St.  §§5067-5071.  U.   S.   676,   and  Palmer  v.   Hiissey,   \\9 

2  §  5072.  U.  S.  96. 

3  §  5117  ;  Young  v.  Cxrau,  14  R.  I.  340.  *  §  5045. 

Tlie  nature  of  tlie  fraud  or  trust  intended  ^  ijarling  v.  Berry,   4  McCrary,  C.  Ct. 

is  considered  in  Hennequin  r.  Clews,   111     470. 


TITLE    BY    ACT    OF   THE    LAW.  573 

persons  who  by  the  laws  of  the  United  States  were  entitled  to 
priority. 1  There  were  detailed  provisions  for  proving  debts,  con- 
testing them,  ascertaining  the  debtor's  property,  for  holding  meet- 
ings of  the  creditors,  and  making  dividends.^ 

When  a  creditor  and  the  bankrupt  had  mutual  and  provable 
claims,  one  was  set  off  against  the  other,  dollar  for  dollar,  and 
the  balance  only  regarded.^  The  debtor  must  have  acquired  his 
claim  before  the  filing  of  his  petition. 

The  bankrupt  might  be  a  sole  trader  and  also  a  member  of  a 
firm.  He  also  might  be  a  member  of  two  or  more  firms,  having 
in  each  case  a  distinct  business,  and  distinct  estates  to  be  wound 
up  in  bankruptcy.  In  such  a  case  the  proof  against  each  estate 
was  required  to  be  made  distinctly  and  separately,  without  refer- 
ence to  the  fact  that  the  firms  were  composed  in  whole  or  in  part 
of  the  same  individuals.  Each  estate  was  thus  treated  as  a  matter 
by  itself,  with  separate  ownership  and  separate  liabilities.* 

It  was  the  object  of  the  law  to  protect  pledges  and  mortgages, 
and  at  the  same  time  to  recognize  the  claims  of  the  creditor  for 
any  difference,  in  case  of  deficiency,  between  the  value  of  the 
property  and  the  amount  of  the  debt.  The  value  might  be  ascer- 
tained by  agreement  or  by  sale,  under  the  direction  of  the  court. 
If  the  value  exceeded  the  mortgage,  the  assignee  was  entitled  to 
the  excess.  The  creditor  was  not  allowed  to  prove  his  claim  for  a 
deficiency  unless  he  complied  with  the  rules  of  law  as  to  the  mode 
of  ascertaining  the  value  of  the  property.^ 

If  three  fourths  in  value  of  the  creditors  resolved  at  a  proper 
meeting  that  it  was  for  the  interest  of  the  general  body  of  the 
creditors  that  the  estate  should  be  settled  by  trustees  under 
the  direction  of  a  committee  of  the  creditors,  that  course  might 
be  sanctioned  by  the  court,  and  the  trustees  substituted  for  the 
assignee.  The  proceedings  were  substantially  the  same  as  if  the 
assignee  had  continued  to  act,  and  the  discharge  of  the  bankrupt 
w^as  equally  binding.^ 

(4)  Proceedings  peculiar  to  partnerships  and  corporations.  — 
Independent  of  any  bankrupt  law,  there  is  a  special  rule  prevail- 
ing in  equity,  in  case  of  the  insolvency  of  a  partnership,  that  if 
there  be  both  partnership  assets  and  separate  property  of  the 
individual  partners,  the  partnership  estate  is  to  be  first  applied  to 
the  discharge  of  the  partnership  liabilities.  This  grew  out  of  the 
theory  of  a  trust,  and  that  each  of  the  partners  had  an  equitable 
lien  upon  the  assets  for  the  sake  of  bringing  about  an  equality  of 

1  U.  S.  Rev.  St.  §  5101.  *  §  5074. 

2  §§  5076-5100.  5  §  5075. 
8  §  5073.                     ^   §  5103. 


574  THE  LAW  OF  PERSONAL  PROPERTY. 

burdens.  There  was  a  later  graft  upon  this  rule,  with  the  same  gen- 
eral tlosire  for  equality,  that  the  separate  creditors  should  have  a 
preferential  claim  upon  the  separate  assets.  This  general  doctrine 
was  followed  in  the  bankrupt  law.i  Where  there  are  no  partner- 
ship assets,  no  such  distinction  is  made.  It  should- be  added,  that, 
after  these  preferences  have  been  made,  any  surplus  from  either 
fund  is  to  be  appropriated  to  the  payment  of  the  non-preferred  class 
of  creditors. 

The  provisions  of  the  bankrupt  law  were  made  applicable  to 
corporations  of  a  moneyed  or  business  character,  with  such  modi- 
fications as  their  peculiar  circumstances  made  necessary.  Such 
a  corporation  could  go  into  voluntary  bankruptcy  by  a  vote  of 
a  majority  of  its  corporators  at  a  legal  meeting  called  for  the 
purpose.2  j^  law  passed  in  1873  and  embodied  in  the  Revised 
Statutes  3  provided  for  the  validity  of  orders  made  for  winding 
up  corporations  of  this  kind  under  State  laws,  notwithstanding 
bankruptcy  proceedings  may  have  been  commenced. 

(5)  The  discharge.  —  One  of  the  main  objects  of  a  bankrupt  law 
was  to  relieve  honest  debtors,  who  had  been  unfortunate,  from 
their  debts.  This,  beyond  doubt,  has  been  one  of  the  principal 
motives  for  enacting  bankrupt  laws  as  they  have  existed  in  this 
country.  In  this  there  is  assumed  to  be  an  element  of  public  pol- 
icy, as  the  debtor  class  of  this  sort  frequently  includes  many  of  the 
most  enterprising  and  energetic  business  men  of  the  country. 

The  discharge  only  operated  upon  claims  that  were  provable 
under  the  law.  If  capable  of  being  proved,  they  were  discharged, 
whether  proved  or  not,  even  if  omitted  from  the  schedule,  unless 
the  omission  was  fraudulent.  The  proper  form  of  discharge  is 
prescribed  in  the  act.* 

The  assets  in  the  later  administration  of  the  law  must  have 
been  equal  to  fifty  per  cent,  of  the  claims,  before  a  discharge  could 
be  had,  unless  the  assent  in  writing  of  a  majority  of  the  creditors, 
both  in  number  and  value,  was  filed  with  the  court.^  The  dis- 
charge does  not  wholly  obliterate  the  claim,  as  though  it  had 
never  existed.  The  debtor  still  remains  under  a  species  of 
"moral  obligation."  This  is  a  technical  expression,  and  refers  to 
a  class  of  instances  of  which  a  discharge  in  bankruptcy  is  one, 
where  there  once  has  been,  or  would  have  been  according  to  gen- 
eral rules,  a  legal  obligation  had  there  not  been  a  legal  maxim  or 
a  statutory  provision  of  an  exceptional  nature.     Such  a  "  moral 

1  U.  S.  Rev.  St.  §  5121.  *  §  5115.     The  subject  of  discharge  is 

2  §  5122.  found  in  §§  5104-5120. 

8  §  5123.  6  §  5112.       This   rule   was  applied  to 

proceedings  commenced  after  Jan.  1,  1869. 


TITLE    BY    ACT   OF   THE   LAW.  575 

obligation  "  is  a  good  basis  for  an  express  promise.  If  the  promise 
be  absolute,  the  bankrupt  is  clearly  liable ;  if  it  be  conditional, 
such  as  to  pay  when  he  is  able,  the  creditor  must  prove  that  the 
condition  has  been  fuliilled.  This  subject  more  properly  belongs 
to  the  law  of  contracts,  and  it  is  deemed  sufficient  here  merely 
to  state  the  rule. 

If  a  debtor  is  sued  upon  a  claim  from  which  he  has  been  dis- 
charged in  bankruptcy,  he  should  set  forth  his  discharge  in  his 
defence.  Otherwise,  the  case  might  go  against  him.  It  is  analo- 
gous to  the  case  of  payment  or  a  release,  which  must  be  set  up  by 
a  debtor  in  avoidance  of  the  debt.^ 

(6)  Fraud  as  an  element  in  bankruptcy  proceedings.  —  This  was 
the  basis  of  the  early  bankrupt  law,  and  even  of  the  modern  bank- 
rupt law.  Fraud  may  appear  in  a  variety  of  forms,  —  either  in 
contracting  the  debt,  or  in  concealing  or  transferring  property, 
or  in  setting  forth  fictitious  claims,  and  in  other  like  ways.  It 
may  also  appear  in  the  course  of  the  proceedings,  and  be  practi- 
cally a  fraud  on  the  court.  Such  fraud  might  lead  to  a  variety  of 
evil  consequences.  It  might  be  construed  to  be  an  act  of  bank- 
ruptcy ;  again,  it  might  vitiate  the  act  done ;  or  it  might  be  a 
ground  for  vacating  or  amending  the  discharge,  or  subject  the 
wrongdoer  to  imprisonment  as  a  criminal.  Specific  sections  of 
the  bankrupt  law  provided  for  these  various  classes  of  cases. 

(7)  The  mutual  relation  of  the  State  and  Federal  courts  in  cases 
of  bankruptcy.  —  A  bankrupt  law  is,  by  force  of  the  United  States 
Constitution,  binding  upon  both  the  State  and  national  tribunals. 
It  is  the  supreme  law  of  the  land.  Action  of  the  State  courts  in 
administering  the  State  collection  laws  must  be  in  subordination 
to  the  policy  of  the  bankrupt  law.  At  the  same  time,  the  State  col- 
lection laws  are  in  full  force  and  vigor  for  most  purposes.  Those 
who  are  not  bankrupt  are  subjected  to  their  rules.  Even  persons 
who  may  become  bankrupt  will  be  amenable  to  these  laws,  except 
so  far  as  the  bankrupt  laws  may  affect  them.  It  is  a  case  of  the 
necessary  modification  of  State  law,  and  not  of  subversion.^ 

With  these  propositions  in  mind,  the  relations  of  the  courts  may 
be  stated  in  the  form  of  rules. 

Rule  1.  The  District  Court  has  exclusive  jurisdiction  (subject 
to  appeal  to  a  higher  Federal  court)  over  the  direct  administra- 
tion of  the  bankrupt's  estate.  It  is  the  only  court  that  can  take 
the  accounts  of  the  estate,  order  its  distribution  among  creditors, 
and  grant  the  bankrupt  his  discharge. 

Rule  2.    Strangers  to  the  proceeding  may  have  rights  to  the 

1  Dimock   v.    Revere  Copper  Co.,   117  ^  Eyster  v.  Gaff,  91  U  S.  521. 

U.  S.  559,  565. 


gyg  THE  LAW  OF  PEKSONAL  PROPERTY. 

estate  which  they  can  enforce  in  the  ordinary  tribunals.  If  such 
a  court  has  jurisdiction  of  a  suit,  it  will  not  necessarily  be  de- 
prived of  it  by  mere  force  of  an  adjudication  in  bankruptcy, 
though  the  bankruptcy  court  might  arrest  or  control  it  for  the 
purposes  of  justice.^ 

Rule  3.  A  sheriff  of  a  State  court  must  obey  an  injunction 
of  the  District  Court.  At  the  same  time,  property  in  his  pos- 
session by  virtue  of  an  execution  before  the  commencement  of 
bankruptcy  proceedings,  should  not  be  taken  away  in  a  summary 
proceeding.  The  judgment  in  the  State  court  should  be  first  set 
aside.2 

Rule  4.  The  court  will  protect  its  assignee  from  having  prop- 
erty taken  away  by  a  State  court  in  a  proceeding  to  which  he  is 
not  a  party. 

Rule  5.  The  bankruptcy  court  may  control  a  proceeding  by  a 
creditor  to  foreclose  a  mortgage  against  the  bankrupt's  estate. 
Leave  to  foreclose  should  be  obtained  from  the  District  Court, 
setting  forth  the  facts.  Still,  prosecution  of  a  foreclosure  suit 
in  a  State  court  is  not  of  itself  a  contempt  of  the  bankruptcy 
court,  and  is  valid.^  The  object  of  this  rule  is  to  protect  the 
interest  of  the  assignee,  and  he  should  not  be  permitted  to  stay  a 
foreclosure  without  good  reason. 

Rule  6.  The  District  Court  has  power  in  a  variety  of  cases 
to  restrain  by  injunction  proceedings  in  State  courts.  Instances 
are  :  to  prevent  a  creditor  from  liquidating  and  enforcing  a  lien  ;  or 
to  prevent  the  sale  of  property  by  virtue  of  an  execution  issuing 
out  of  a  State  court ;  or,  in  a  proper  case,  to  prevent  an  attaching 
creditor  from  proceeding  against  the  goods  attached  ;  or  to  re- 
strain the  prosecution  by  a  depositor  against  an  insolvent  bank ; 
or  to  restrain  persons  from  collecting  rents  of  real  estate  in  which 
the  bankrupt  has  an  interest. 

Rule  7.  A  distinction  must  be  carefully  taken  between  cases 
where  jurisdiction  has  been  exercised  before  tlie  bankrupt  pro- 
ceedings were  initiated,  and  those  where  the  bankrupt  proceedings 
preceded  State  action.  Thus,  a  bankrupt  court  cannot  correct  or 
annul  judgments  rendered  in  a  State  court,^  nor  afTect  alimony 
in  a  divorce  suit,^  nor  prevent  the  prosecution  of  an  action  al- 
ready commenced,^  nor,  as  we  have  seen,  take  property  from  a 
sheriff  holding  it  under  State  execution.^ 

*  In  re  Davis,  1  Sawy.  260.  5  jj^  ^g  Garrett,  11   Nat.  Bankr.   Reg. 
2  Infra,  Rule  7.                                            493. 

8  In  re  MoUer,  14  Blatch.  207.  «  Hewett   v.  Norton,  13  Nat.  Bankr. 

*  In  re  Dunn,   11   Nat.   Bankr.  Reg.     Reg.  276. 

270.  7  Townsend  v.  Leonard,  3  Dill.  370. 


TITLE    BY   ACT   OF    THE    LAW.  577 

The  action  of  the  bankruptcy  court  does  not  disturb  liens 
created  by  contract  prior  to  tlie  act  of  banl^ruptcy  and  in  good 
faith.  It  only  affects  tlie  mode  of  enforcing  them.  The  lien  is 
to  be  recognized.!  While  the  mortgagor  is  still  under  a  relation 
of  trust  to  the  mortgagee,  the  bankruptcy  court  has  a  broad  and 
extensive  authority  to  work  out  the  trust  in  accordance  with  the 
intention  of  the  law.^  If  a  receiver  appointed  by  a  State  court 
under  regular  proceedings  be  in  possession,  the  proceedings  in 
bankruptcy  will  not  be  a  ground  for  dispossessing  him.^  And  if 
he  be  in  possession  in  a  foreclosure  case,  the  only  recourse  for  the 
assignee  is  to  redeem  the  mortgage.*  Where  a  corporation  is  dis- 
solved under  a  State  law,  and  afterwards  becomes  bankrupt,  the 
proceeds  up  to  that  time  in  the  State  court  are  saved.° 

Insolvency  under  State  laws.  —  The  original  distinction  between 
bankruptcy  and  insolvency,  as  it  existed  in  England,  has  practi- 
tically  disappeared  in  the  United  States.  A  State  may  pass  what 
in  substance  is  a  bankrupt  law  ;  that  is,  a  law  discharging  a  debtor 
from  the  payment  of  his  debts,  as  well  as  one  relieving  him  simply 
from  imprisonment.  There  are,  however,  practical  limitations  to 
the  power  of  the  States  growing  out  of  restrictions  in  the  United 
States  Constitution.  The  full  statement  of  these  properly  belongs 
to  a  treatise  on  constitutional  law.  They  will  be  noticed  here  in 
a  brief  and  summary  manner. 

(1)  A  State  is  restricted  in  this  respect  by  the  clause  in  the 
United  States  Constitution  to  the  effect  that  "  no  State  shall  pass 
any  law  impairing  the  obligation  of  contracts."  ^  This  prohibition 
prevents  a  State  from  making  any  material  change  in  the  effect 
of  a  contract  by  a  subsequent  law,  and,  of  course,  from  discharg- 
ing an  obligation  on  any  grounds  that  did  not  exist  when  the 
contract  was  made.  This  rule  does  not  hinder  a  prior  State  law 
from  affecting  a  subsequent  contract,  since  in  that  case  the  law  is 
assumed  to  enter  into  the  contract. 

(2)  Again,  even  though  the  law  comply  with  the  rule  as  above 
stated,  yet  it  cannot  affect  contracts  made  between  a  citizen  or  a 
resident  of  the  State,  and  a  citizen  or  resident  of  another  State, 
unless  the  foreign  creditor  chooses  to  submit  to  the  jurisdiction  of 
the  court  and  allow  his  claim  to  be  adjudicated  upon.'  It  has  been 
strongly  urged  by  the  Massachusetts  court  ^  that  the  rule  would  be 

1  /*ire  BurtandTowne,12Blatch.  252.  den   v.    Saunders,    12   Wheat.    213,    358; 

2  Lockett  V.  Hill,  1  Woods,  552.  Boyle  v.  Zacharie,  6  Pet.  348. 

3  Bradley  w.  Healey,  1  Holmes,  451.  ^  Scribner  y.  Fisher,   2  Gray,   43;    bnt 

4  Davis  V.  Railroad  Co.,  1  Woods,  661.  see  Kelley  v.  Drury,   9  Allen,   27,  where 

5  In  re  Nat.  Life  Ins.  Co.,  6  Biss.  35.  the  doctrine  of  Baldwin  v.  Hale  is  adopted 
"  Art.  1.,  §  10,  cl.  1.  by  the  Mass.  court. 


Baldwin  v.  Hale,  1  Wall.  223;  Og- 


37 


578  THE  LAW  OF  PERSONAL  PROPERTY. 

different  if  the  contract  were  by  stipulation  of  the  parties  to  he 
performed  in  the  State  where  the  insolvent  proceedings  were  pend- 
in<>-.  This  view  has  not  met  with  general  recognition,  and  is  dis- 
carded in  other  States,^  and  has  been  repudiated  by  the  Supreme 
Court  of  the  United  States.^  (a)  The  rule  may  be  stated  in  a  more 
t'-eneral  form.  No  State  laws  can  discharge  the  obligations  of 
anv  contracts  made  in  the  State,  except  those  made  between 
citizens  of  that  State.^ 

Where  an  insolvent  law  simply  acts  on  the  remedies  to  be  used 
in  enforcing  the  contract,  it  may  be  retroactive,  but  this  princi- 
ple must  not  be  pressed  so  far  as  to  deprive  the  creditor  of  all 
efficient  remedy.  An  instance  is  that  of  abolishing  imprisonment 
for  debt.  If  there  be  still  remaining  the  ordinary  remedies  for 
collecting  debts,  the  abolition  will  be  upheld.*  The  distinction 
between  a  right  and  a  remedy  assumes  much  importance  in  this 
branch  of  constitutional  law. 

The  rights  of  foreign  assignees  in  hanhrujjtcy  or  insolvency.  — 
"When  an  assignee  is  appointed  by  a  court  of  bankruptcy  or  insol- 
vency in  England,  or  perhaps  in  another  State  of  the  Union  than 
the  State  where  the  assets  are,  the  question  arises  how  far  will 
the  courts  of  the  latter  State  permit  the  foreign  assignee  to  have 
control  of  these  assets  for  the  purposes  of  the  bankruptcy.  This 
is  really  a  question  of  the  so-called  "  comity  of  nations."  There 
is  no  positive  obligation,  which  can  be  enforced,  imposed  upon 
a  nation  to  recognize  the  decrees  or  judgments  of  courts  ren- 
dered elsewhere.  There  is,  however,  a  practice  or  course  of 
proceeding  of  that  kind  which  prevails,  unless  there  are  coun- 
tervailing reasons  to  the  contrary,  or  some  prohibitory  statute. 

In  applying  this  general  principle  to  the  particular  instance 
now  in  hand,  there  has  been  great  vacillation  of  judicial  opinion. 
Some  courts  have  reached  the  conclusion  that  the  assignment 
under  the  bankrupt  law  of  a  particular  State  should  pass  a  title 
to  the  property  everywhere.  Others  have  adopted  the  view  that, 
while  the  foreign  assignment  should,  as  a  rule,  pass  the  title  else- 
wliere,  yet  that  this  doctrine  should  be  subordinate  to  the  rights 
of  domestic  creditors.  Others  take  a  more  limited  view  still,  and 
deem  the  foreign  assignment  to  have  no  extra-territorial  effect. 
It  is  a  local,  domestic  matter,  and  nothing  more. 

1  Donnelly   v.    Corbett,    7   N.    Y.  500;  Wall.    234;    Oilman  v.   Lockwood,   4  Id. 

Poe  1-.  Duck,  5  Md.  1;    Pugh  v.  Bussel,  409. 
2  Blackf.  (Ind.)  394.  3  Baldwin  v.  Hale,  1  Wall.  223. 

2  Baldwin    v.    Bank    of   Newburv,    1  *  Bronson  v.  Kinzie,  1  How.  U.  S.  311. 


(«.)  The  doctrine  of  the  United  States  Phcenix  Nat.  Bank  v.  Batcheller,  151 
Supreme  Court  in  Baldwin  v.  Hale  has  Mass.  589;  Guernsey  v.  Wood,  130  Mass. 
been  reiterated  recently  in  Massachusetts.     503. 


TITLE    BY    ACT    OF   THE    LAW.  579 

A  distinction  must  be  taken  between  movables  and  immov- 
ables, —  a  distinction  recognized  in  all  the  theories.  As  to  the  title 
to  immovables,  the  law  of  the  country  where  the  property  is 
situated  is  followed.  The  question  as  to  the  effect  of  a  bankrupt 
or  insolvent  law  upon  this  kind  of  property  may,  accordingly,  be 
withdrawn  from  the  discussion.  The  test  as  to  whether  a  par- 
ticular thing  is  an  immovable  or  not,  is  the  rule  prevailing  in 
the  country  where  the  thing  in  question  happens  to  be. 

The  first  theory  prevailing  in  England  will  be  called  the 
"  English  theory."  The  doctrines  there  prevailing  may  be  briefly 
summed  up  as  follows.  There  are  two  cases  :  First,  where  the 
bankrupt  is  domiciled  in  England  or  in  the  British  dominions. 
Second,  where  he  is  not.  The  first  is  much  the  more  common 
case. 

The  fundamental  principle  underlying  the  whole  subject  is,  that 
the  movable  property,  including  rights  of  action,  by  a  fiction  of 
law  follows  the  person  of  the  owner,  and  is,  accordingly,  with 
him  where  he  may  be  domiciled.  A  transfer  there  must,  neces- 
sarily, on  this  theory,  dispose  of  the  property  wherever  it  may  be 
situated.  Accordingly,  the  English  courts  admit  the  title  of 
foreign  assignees  appointed  by  the  court  of  the  debtor's  domicile, 
when  the  property  is  situated  in  England. ^  The  rule  is  not  to  be 
extended  so  far  as  to  pass  to  the  assignee  property  in  the  foreign 
country  which  would  not  have  passed  to  him  liad  it  been  situated 
in  the  State  or  country  where  the  bankruptcy  proceedings  took 
place.  It  follows  from  the  general  rule  that  the  title  of  the  for- 
eign assignee  would  prevail  over  a  gift  made  by  the  debtor,  as 
well  as  over  an  attachment  by  a  creditor  in  the  State  where  the 
assets  were.^ 

The  English  courts  in  enforcing  these  rules  are  met  by  the 
difficulty  that  they  do  not  prevail  universally  elsewhere.  They 
can  only  enforce  them  in  cases  where  the  assets,  though  situated 
out  of  England,  are  at  some  place  within  the  British  dominions. 
If  beyond  their  jurisdiction,  they  may  be  affected  by  some  foreign 
proceedings,  and  yet  subsequently  come  within  British  control. 
In  such  a  case  the  question  will  arise,  how  far  will  the  English 
court  recognize  the  foreign  proceeding.  The  rule  there  appears 
to  be,  that  while  it  will  not  recognize  a  voluntary  payment  by  a 
debtor,  it  will  uphold  one  collected  by  legal  process.  This  last 
statement  is  an  inference  from  a  general  rule  that  a  title  obtained 
by  a  foreign  judgment  from  a  court  having  jurisdiction,  and  there 

1  Sill  V.  Worswick,  1  H.  Bl.  665 ;  It  will  be  seen  hereafter  that  this  is  not 
JoUet  V.  Deponthieu,  Id.  132  (n).  the  prevailing  rule  in  this  country. 

2  Solomons  v.  Ross,    1  H.  Bl.  131  (n). 


580  THE  LAW  OF  PERSONAL  PROPERTY. 

beinsr  no  element  of  fraud,  will  be  valid.^  It  ought  further  to  be 
stated  that  if  a  creditor,  hadng  received  some  portion  of  his  claim 
abroad,  asks  for  any  part  of  the  funds  in  the  English  court,  he 
must  bring  into  the  common  fund  the  portion  so  acquired  abroad. 
This  rule  rests  on  principles  of  natural  justice,  enforcing  an 
equality  of  rights,  upon  which  the  bankruptcy  law  itself  depends. ^ 

Where  the  bankrupt  is  not  domiciled  in  the  country  in  which 
the  proceeding  is  pending,  the  rules  cannot  be  definitely  stated. 
It  would  seem  that  its  effect  is  local,  and  does  not,  accordingly, 
in  general,  pass  to  the  assignee  the  title  to  goods  abroad.  But 
there  are  few  direct  adjudications  upon  this  question. 

The  theory  generally  prevailing  in  the  United  States  is,  that 
while  the  statutes  of  foreign  States  (including  those  on  the  subject 
of  bankruptcy)  can  in  no  case  have  any  force  in  this  country  by 
their  own  authority,  and  that  a  foreign  assignee  in  Imnkruptcy 
can  have  no  recognition  here  by  force  of  the  foreign  law,  yet  that 
comity,  which  is  really  a  part  of  the  common  law,  allows  a  certain 
effect  to  the  title  derived  under  the  foreign  statute,  when  this 
can  be  done  without  injustice  to  our  own  citizens,*  and  without 
prejudice  to  the  rights  of  creditors  pursuing  their  remedies  here. 
Accordingly,  foreign  assignees  can,  subject  to  these  conditions, 
appear  in  our  courts  and  maintain  suits  against  debtors  of  the 
bankrupt,  and  others  who  may  have  possession  of,  and  are  liable 
on  general  principles  of  law  to  account  for,  his  property.^  (a) 

It  may  be  laid  down  still  more  generally,  that  any  sale  or  trans- 
fer in  one  State  or  country,  even  though  the  seller  be  domiciled 
there,  of  property  situated  in  another  country,  having  regulations 
conflicting  with  the  sale  or  its  modes,  must  give  way  if  the  rules 
in  the  country  of  the  situs  be  not  complied  with.  This  is  but  a 
restriction,  for  local  reasons,  of  the  general  doctrines  of  comity  as 
between  nations.'* 

If,  however,  the  property  sold  be  at  the  time  at  sea,  and  subse- 
quently come  into  the  port  of  another  State,  the  fact  that  it  was 
at  sea  will  be  considered  as  making  it  a  part  of  the  territory  of 

^  Castrique  v.  Imrie,  L.  R.  4  H.  of  L.  proving  cases   opposed   to   its  principles, 

Cas.  414.  such   as   Abraham  v.   Plestoro,   3  Wend. 

2  Ex  parte  Wilson,  L.  R.  7  Ch.  App.  538,  and  Mosselman  v.  Caen,  34  Barb.  66. 
490,  493  ;  Selkrig  v.  Davis,  2  Hose  Bankr.  *  Green  v.  Van  Buskirk,  7  Wall.  139, 
Cas.  291.  150  ;   Hervey  v.  R.  I.  Locomotive  Works, 

3  ilatter  of  Waite,  99  N.  Y.  433.  This  93  U.  S.  664  ;  Pierce  v.  O'Brien,  129  Mass- 
is  an  elaborate  and   satisfactory  decision,  314  ;  Clark  v.  Tarbell,  58  N.  H.  88. 
discussing  previous  decisions,  and  disap- 


(a)  See   Hibernia  National  Bank  v.  Lacombe,  84   X.  Y.  367  ;   Barth  v.  Backus, 
140  X.  Y.  230. 


TITLE    BY   ACT    OF   THE    LAW.  581 

the  State  where  the  transfer  was  made,  and  the  law  of  the  State 
where  the  ship  was  arrested  will  have  no  effect.^ 

Special  questions  arise  as  to  a  foreign  corporation.^  A  corpo- 
ration, being  a  creature  of  the  goyernment  which  charters  it,  has 
such  power  to  contract  liabilities  and  to  cause  them  to  be  varied  or 
discharged,  as  its  government  mav  confer.  Foreign  creditors 
holding  its  obligations  are  presumed  to  take  them  subject  to  this 
rule.  Accordingly,  where  the  Parliament  of  Canada  had  created  a 
railway  corporation  which  had  issued  negotiable  bonds  secured 
by  mortgage,  to  creditors  residing  in  this  country,  and  had  pro- 
vided that  new  securities  might  be  substituted  in  the  place  of  the 
older  ones,  with  the  consent  of  the  majority  of  the  bond-holders, 
which  should  be  binding  on  the  minority,  it  was  held  that  the 
Parliament  had  authority  to  take  this  course,  and  that  the  statute 
was  binding  on  American  bond-holders,  in  the  courts  of  the 
United  States.  This  act  was  a  species  of  bankrupt  law,  but 
depends  for  its  validity  here  on  the  special  principles  of  corpora- 
tion law.^ 

There  is  still  another  theory  as  to  the  effect  of  a  foreign  bank- 
ruptcy on  the  title  to  movables  elsewhere.  This  is,  that  it  has  no 
effect  in  this  country,  and  passes  no  title.  This  doctrine  is 
sustained  by  few  authorities,  and  is  unsound  in  principle.  It 
probably  grew  out  of  a  misapprehension  of  the  true  scope  of  some 
of  the  earlier  decisions. 


DIVISION    VII.  —  Title  hy  Succession. 

The  term  "succession,"  as  used  in  the  Roman  law,  is  a  convenient 
expression  to  indicate  all  modes  whereby  title  to  property  passes 
from  a  predecessor  to  a  successor.*  In  this  connection  it  will  be 
confined  to  one  who  enters  into  the  rights  of  property  of  a  deceased 
person.  Under  our  law  this  may  happen  in  two  general  modes, 
one  by  will,  and  the  other  by  intestacy. 

Section  I.  Title  hy  Will.  —  This  subject  will  be  discussed  only 
as  to  wills  of  personal  property.  Wills  of  real  estate  could  not  be 
made  at  common  law,  except  in  special  localities,  where  there  was 
a  custom  to  that  effect.  They,  accordingly,  depend  wholly  upon 
statute. 

This  topic  will  be  treated  under  the  following  heads :   I.  The 

1  Crapo  V.  Kelh-,  16  "Wall.  610,  revers-  3  j^i^ 

ing  Kelly  v.  Crapo,  45  N.  Y.  86.  4  Mackeldey's  Rom.  Law,  §  6i9. 

■^  Canada  Southern  R.  R.  Co.   v.   Geb- 
hard,  109  U.  S.  527. 


582  THE  LAW  OF  PERSONAL  PROPERTY. 

origin  of  the  power  to  make  wills  of  personal  property ;  II.  Ca- 
pacity to  make  a  will ;  III.  The  nature  and  requisites  of  a  will 
or  testament;  IV.  Revocation;  V.  Revival  and  republication; 
YL  Probate;  VII.  The  construction,  operation,  and  effect  of  a 
will;  VIII.  Legacies. 

I.  The  origin  of  the  power  to  make  wills  of  personal  property.  — 
The  power  to  make  a  will  of  personal  property  dates  from  a  very 
remote  period  in  English  law.  The  early  rule  was  to  divide  a 
man's  property  into  certain  parts,  some  of  which  he  could  be- 
queath and  some  of  which  he  could  not.  Thus,  if  he  left  a  wife 
and  child,  he  might  bequeath  one  third ;  if  he  left  a  wife  or  child, 
but  not  both,  one  half ;  and  if  he  left  neither  wife  nor  child,  the 
whole.  The  share  allotted  under  this  rule  to  a  wife  or  child  was 
called  a  "  reasonable  part."  The  law  in  the  reign  of  Henry  III. 
(about  1256-57)  is  well  stated  by  Bracton.  At  that  early  day  the 
power  to  make  a  testament  was  conceded  to  one  "  of  sound  mind 
and  of  good  memory,  although  weak  of  body  and  confined  by 
sickness  and  set  in  his  death-bed."  ^  He  was  bound  to  remember 
his  lord  with  the  best  thing  he  had,  and  the  Church  with  the  next 
best  thing.  No  one  was  bound  to  give  anything  to  the  Church 
for  burial ;  "  nevertheless,  where  that  laudable  custom  exists,  the 
Lord  the  Pope  does  not  wish  to  break  through  it."  After  these 
privileged  claims,  the  testator  might  pay  regard  to  his  parents, 
and  other  persons,  according  as  he  is  pleased.  A  woman  miglit 
make  a  will,  like  any  other  person ;  but  if  married,  she  could  not 
make  it  without  her  husband's  consent,  except  by  special  custom.^ 

In  determining  what  property  an  owner  may  effectually  be- 
queath, Bracton  holds  that  the  debts  due  the  king  must  be  first 
paid,  and  that  only  the  residue  of  the  chattels  comes  to  the  exec- 
utors. Then  follows  a  singular  statement,  that  if  any  debt  is  due 
to  the  Jews,  it  shall  not  draw  interest  until  the  heir  is  of  full  age. 
Other  debts  and  funeral  expenses  are  to  be  deducted.  "  The 
whole  which  remains  over  shall  be  divided  into  three  parts,  —  of 
which  let  one  part  be  left  to  the  male  children  of  the  deceased,  if 
he  has  male  children  ;  the  second  to  the  wife,  if  she  survive ;  and 
of  the  third  part  the  testator  may  have  the  free  disposal.  But  if 
he  have  no  children,  then  the  one  half  shall  be  reserved  to  the 
deceased,  and  the  other  half  to  the  wife.  But  if  he  has  died  with- 
out a  wife,  there  being  children,  then  the  half  shall  be  at  the  dis- 
posal of  the  deceased,  and  the  half  shall  go  to  the  children.  But 
if  he  die  without  wife  or  children,  then  the  whole  shall  be  at  the 
disposal  of  the  deceased."  ^     It  is  difficult  to  say  when  this  rule 

1  Twiss'  Translation,  vol.  i.  115.  s  Twiss'  Translation,  vol.  i.  483. 

2  Id.  479. 


TITLE   BY   ACT   OF   THE    LAW.  583 

ceased  to  be  a  part  of  the  common  law.  It  gradually  became  obso- 
lete. A  feeling  against  it  existed  even  in  the  time  of  Bracton  ;  for 
he  states  that  some  say  that  the  wife  or  children  should  not  claim 
anything  except  of  grace ;  "  for  there  would  be  scarcely  found  any 
citizen  who  would  make  in  his  lifetime  great  acquisitions,  if  he 
were  compellable  at  his  death,  against  his  will,  to  leave  his  goods 
to  ignorant  and  lazy  sons,  or  to  wives  who  ill  deserved  them ;  and 
therefore  it  is  very  necessary  that  he  should  be  allowed  free  liberty 
in  this  part.  For  through  this  means  he  will  abolish  misconduct, 
animate  to  virtue,  and  give  to  his  wife  and  to  his  children  an 
occasion  for  doing  good,  which  would  not  be  done  if  they  knew 
without  a  doubt  that  they  would  obtain  a  certain  portion,  even 
witliout  the  consent  of  the  testator."  ^  In  fact,  the  rule  appears 
to  have  been  an  exotic.  It  was  borrowed  in  substance  from  the 
Roman  law,^  was  alien  to  English  feeling,  and  slowly  disappeared. 
Before  the  time  of  the  American  Revolution  it  had  disappeared, 
even  from  localities  where  it  had  existed  by  special  custom.  The 
general  rule  in  this  country  is,  that  with  certain  statutory  excep- 
tions an  owner  can  make  his  will  disposing  of  goods  and  chattels 
to  whomsoever  he  pleases. 

II.  Capacity  to  make  a  ivill.  —  As  it  is  a  general  rule  that 
capacity  exists,  it  is  only  necessary  to  consider  the  exceptions. 
Incapacity  to  dispose  of  property  by  will  may  arise  from  want 
of  age,  or  mental  unsoundness,  or  from  restraint  either  in  fact,  or 
imposed  by  some  rule  of  law. 

Want  of  age.  —  In  order  to  make  a  valid  will  a  male  must  have 
reached  the  age  of  fourteen  years,  and  a  female,  twelve.  This 
rule  appears  to  have  been  borrowed  from  the  Roman  law.  Resort 
to  the  Roman  law  was  natural,  as  the  jurisdiction  over  wills  of 
personal  property  was  vested  in  the  ecclesiastical  court,  and  ec- 
clesiastics were  familiar  with  that  law.  In  that  system  minors, 
after  reaching  the  age  of  puberty,  could  make  a  will.^  This  rule 
has  been  to  some  extent  changed  by  statute."*  The  rule  as  to  a 
will  of  land  is  twenty-one  years  for  both  sexes. 

Mental  unsoundness.  —  The  expression  "mental  unsoundness" 
is  here  used  generally  to  include  all  cases  in  which  mental  capacity 
is  impaired  or  destroyed,  whether  by  natural  or  congenital  weak- 
ness, active  insanity,  old  age,  etc. 

It  is  generally  conceded  that  the  test  of  capacity  to  make  a  will 

1  Twiss'  Trans.,  vol.  i.  485-487.  authorized   hy  law,  and  specified   in   the 

2  The  Roman  law  varies  from  time  to     will,     ilackeldey,  §  713. 
time  on  this  subject.     The  later  rule  is  ^  Mackeldey,      687. 

found   in   Justinian,    Novel   115,  c.   3-5.  *  In  New  York  the  age  is  18  in  the 

As  between  parents  and  children,  there  case  of  males,  and  16  in  the  case  of  females, 
could  be  a  total  exclusion  only  for  causes     N.  Y.  Rev.  St.  (8th  ed.)  p.  2547. 


584  THE  LAW  OF  PERSONAL  PEOPERTY. 

is  not  the  same  as  that  of  making  a  contract.  In  a  contract  one 
mind  is  opposed  to  another,  and  a  man  of  strong  intellect  may  in 
the  struggle  so  overcome  one  of  weak  powers  as  to  obtain  a  con- 
tract which  the  other  party  had  not,  under  the  circumstances,  the 
cajiacity  to  make.  There  has  been  much  fluctuation  of  opinion 
as  to  the  correct  rule  in  the  case  of  a  will  where  no  "  undue  influ- 
ence "  is  exercised.  Reserving  that  topic  for  later  consideration, 
the  prevailing  opinion  is  that  the  general  test  of  capacity  to  make 
a  will  is  substantially  as  follows  :  The  testator  must  have  "  suffi- 
cient active  iiiemory  to  collect  in  his  mind,  without  prompting, 
particulars,  or  elements,  of  the  business  to  be  transacted,  and  to 
hold  them  in  his  mind  a  sufficient  length  of  time  to  perceive  at 
least  their  obvious  relations  to  each  other,  and  be  able  to  form 
some  rational  judgment  in  relation  to  them."  ^  It  is  a  further 
principle  that  the  burden  of  proof  rests  upon  those  who  propound 
the  will  for  probate  to  establish  the  capacity  of  the  testator.^ 

The  rule  as  above  stated  involves  two  propositions,  —  one  that 
the  testator  is  left  to  himself,  and  to  reach  his  own  conclusions  ; 
the  other,  that  his  conclusions  are  rational.  It  is  assumed  that  a 
rational  will  cannot  emanate  from  an  irrational  mind,  acting  by 
its  own  volition.  So  it  is  fair  to  reason  that  the  reasonableness 
of  the  will  tends  to  show  that  the  mind  is  sound,  —  where,  for 
example,  an  attack  is  made  on  its  sanity.^ 

Undue  influence.  —  This  form  of  restraint  exists,  where,  though 
there  is  sufficient  mental  capacity  if  the  testator  be  left  to  himself, 
yet  disturbing  influences  are  brought  to  bear  upon  him  sufficient  to 
deprive  the  instrument  of  the  character  of  a  voluntary  act. 

As  a  branch  of  this  subject,  it  is  necessary  to  consider  certain 
legal  rules  relating  to  the  effect  of  confidential  relations  between 
the  testator  and  the  objects  of  his  bounty.  There  is  a  large  num- 
ber of  such  relations  recognized  in  law.  Prominent  among  them 
are  attorney  and  client,  physician  and  patient,  clergyman  and 
parishioner,  parent  and  child,  husband  and  wife,  trustee  and  bene- 
ficiary, guardian  and  ward,  etc.  When  one  of  the  parties  stands 
in  one  of  these  relations  to  the  other,  and,  through  the  influence 
exercised  by  him  on  the  testator,  obtains  a  legacy,  and  particularly 
a  legacy  disproportionate  to  that  of  others  having  equal  claims, 
the  court  will  insist  on  being  satisfied  that  the  transaction  was  fair 

1  Converse  v.  Converse,  21  Vt.  168, 170  ;  followed  it,  adopting  a  different  rule,  must 

Harwood  v.  Baker,  3  Moore,  P.  C.  C.  282  ;  be  regarded  as  overruled. 
Den  V.  Johnson,  2  Southard  (N.  J),  454  ;  2  Crowninshield    v.    Crowninshield,    2 

Delafield  v.  Parish,  1  Redf.  1,  Opinion  in  Gray,  524  ;  Delafield  v.  Parish,  siqwa,  146, 

Ct.    of  Appeals,    pp.    137-139 ;  s.   c.   25  147. 

N.  Y.  9.     The  case  of  Stewart  v.  Lispe-  3  Greenwood  v.  Greenwood,   3  Carter's 

nard,  26  Wend.  255,  and  the  cases  that  Ecc.  Piep.  Appendix,  p.  ii. 


TITLE    BY    ACT    OF    THE    LAW.  585 

and  just.     The  burden  of  proof  will  be  on  the  claimant  to  make 
this  clear.  («) 

There  was  a  maxim  of  the  Roman  law  which  is  recognized  in  our 
own,  —  qui  sese  scripsit  hceredem, —  referring-  to  the  case  where  a 
will  was  in  the  handwriting  of  a  party  benefited.  This  fact  is  not 
a  fatal  objection  to  a  legacy,  but  makes  it  necessary  for  the  legatee 
to  show  that  the  real  intention  of  the  testator  was  expressed.  It 
raises  a  presumption  against  the  will,  which  needs  to  be  rebutted. 

Where  the  testator's  capacity  is  impaired  by  disease,  old  age,  etc., 
the  considerations  above  stated  increase  in  importance.  If  one 
standing  in  a  confidential  relation,  as  a  child  or  trustee,  deals  with 
a  parent  or  beneficiary  of  weak  intellect,  the  presumption  of  undue 
influence  is  greatly  strengthened. 

In  all  cases,  the  real  questions  are,  was  the  testator  capable  of 
making  the  will,  if  left  to  himself?  If  so,  was  he  under  such 
influences  or  restraint  as  to  prevent  the  instrument  from  being 
the  true  expression  of  his  will  ?  (5)  The  circumstances  attending 
the  execution  of  the  instrument  are  in  the  nature  of  evidence  to 
shed  light  on  these  principal  questions. 

Coverture.  —  By  the  common  law,  a  married  woman  could  not 
make  a  will  of  personal  property  without  her  husband's  consent ; 
with  that  consent  she  could.  There  have  been,  in  some  instances, 
restraints  upon  her  testamentary  capacity.  This  was  at  one  time 
the  case  in  New  York  ;  but  the  disability  is  now  removed.  The 
general  tendency  of  the  law  in  this  country  now  is,  to  allow  a 
married  woman  to  dispose  of  her  property  by  will  as  freely  as 
if  she  were  single. 

III.  The  nature  and  requisites  of  a  ivill  or  testament.  —  A  testa- 
ment may  be  defined  to  be  the  expression,  in  legal  form,  of  one's 
purpose  as  to  the  disposition  after  his  death  of  property  which  is 
his  own,  or  over  which  he  has  control.  The  words  "  over  which 
he  has  control"  are  inserted  in  the  definition,  for  the  reason  that 
a  testator  may  sometimes  make  a  will  of  the  property  of  another 
by  means  of  a  "  power  "  granted  to  him.  An  important  point  in 
this  definition  is,  that  the  will  must  be  made  in  legal  form.  Though 
the  intention  be  plain,  yet  if  the  prescribed  forms  be  not  followed, 
the  will  is  void. 

In  disposing  of  his  property,  an  owner  is  confined  to  a  will  only 
in  cases  where  the  disposition  is  to  have  no  effect  until  after  his 
death,  and  is  revocable.     If  the  dispositions  operate  at  once  (in 

(a)  Marx  v.  McGlynn,  88  N.  Y.  357 ;  wagen  v.  RoUwagen,  63  N.  Y.  504  ; 
Matter  of  Will  of  Smith,  95  N.  Y.  516  ;  Matter  of  Will  of  Snelling,  136  N.  Y. 
Matter  of  Mondorf,  110  N.  Y.  451.  515. 

(b)  Marx    v.    McGlynn,    siipra ;   Koll- 


536  THE  LAW  OF  PERSONAL  PROPERTY. 

vrcesenti),  they  may  be  valid  as  contracts,  although  they  are  not 
to  be  carried  into  execution  until  after  the  death  of  the  party 
making  them,  or  are  contingent  upon  the  survivorship  of 
another.^ 

A  will  of  personal  property  was,  in  England,  until  within  a  few 
years,  a  matter  for  the  ecclesiastical  courts,  and  was  governed  by 
rules  peculiar  to  those  tribunals.  By  the  ecclesiastical  law,  a  will 
miuht  be  cither  oral  or  in  writing.  This  was  also  the  rule  in  the 
Roman  law.  In  that  system  there  were  important  and  compli- 
cated formalities  in  order  to  guard  against  fraud  or  error.^  These 
formalities  were  not  observed  in  the  English  ecclesiastical  law. 
There  w^as,  in  fact,  no  protection  against  the  most  barefaced  fraud 
and  perjury.  It  might  be  made  in  the  handwriting  of  the  testator 
without  his  name,  seal,  or  witnesses,  or  even  in  another's  hand- 
writing, if  proved  to  be  according  to  his  instructions,  and  ap- 
proved by  him.  This  rule  did  not  apply  to  wills  of  land  after  the 
29th  year  of  Charles  II.  (1676),  when  an  execution  by  prescribed 
formalities  was  introduced. ^  It  continued  to  be  the  rule  in  Eng- 
land as  to  personal  property  until  January  1,1838,  when  the  same 
ceremonies  were  made  necessary  as  in  devises  of  real  estate.* 

Nuncupative,  or  oral  wills,  were  formerly  allowable  when  the 
testator  was  in  extremis.  His  intention  could  be  taken  down  after- 
wards in  writing,  if  proved  by  a  sufficient  number  of  witnesses. 
The  Statute  of  Frauds  placed  these  transactions  under  a  number 
of  restrictions,  unless  when  made  by  mariners  at  sea  or  soldiers 

1  Matter  of  Diez,  50  N.  Y.  88,  93  ;  the  testator's  testament ;  whereupon  each 
GUnian  v.  McArdle,  99  N.   X.   451.  subscribed,  and  sealed  it. 

2  By  the  Roman  law  there  was  a  dif-  "  If  the  testator  desired  to  have  the  con- 
ference between  the  forms  in  oral  and  tents  of  the  will  kept  secret,  he  placed  it  in 
written  wills.  In  making  an  oral,  or  nun-  an  envelope,  with  a  declaration  that  the 
cupative  will,  the  testator  must  declare,  in  envelope  contained  his  last  will  and  testa- 
thepresenceof  seven  witnesses,  his  last  will,  ment.  He  then  signed  the  envelope,  and 
and  the  names  of  his  heirs,  with  clearness,  the  witnesses  placed  their  signatures  and 
and  in  language  understood  bj'^  the  wit-  seals  on  the  envelope. 

nesses.  If  the  will  were  written,  it  might  Special  rules  prevailed  when  the  testa- 
be  either  in  the  testator's  own  handwriting  tor  was  mute  or  blind,  and  there  was  a 
or  not.  If  the  former,  it  was  termed  dispensation  with  the  rules  when  the 
"  holographic,"  and  it  must  state  that  testament  was  made  by  a  soldier  on  the 
the  testator  wrote  it  all  himself.  The  field,  and  a  relaxation  of  them  when  made 
testator  need  not  subscribe  it.  If  written  in  the  country,  or  during  the  prevalence  of 
by  another,  it  must  be  acknowledged  in  the  a  contagious  disease.  The  methods  varied 
presenceof  seven  witnesses,  and  the  testator  when  an  ascendant  made  a  descendant  his 
must  subscribe  his  name.  If  he  could  not  heir.  Mackeldey's  Rom.  Law,  §§  692-700. 
write,  for  any  reason,  an  eighth  person  ^  Statute  of  Frauds,  29  Car.  II.  c.  3. 
must  sign  his  name,  and  state  that  he  did  *  Statute  of  Wills,  7  Wm.  IV.  and  1 
so  at  the  testator's  request.  Yict.  c.  26,  §§  9,  11,  and  12.  This  act 
The  next  step  in  each  of  the  cases  above  is  modified  as  to  the  mode  of  the  testator's 
named  was  to  place  the  will  before  the  making  his  signature  by  15  &  16  Vict, 
witnesses,  with  the  declaration  that  it  was  c.  24,  §  1  (1852). 


TITLE    BY   ACT    OF   THE   LAW.  587 

in  actual  service.  The  subject  is  now  governed  in  England  by 
statutes  entering  into  much  detail  as  to  special  cases.i 

There  is  an  important  distinction  between  real  estate  and  per- 
sonal property,  to  the  following  effect.  The  solemnities  necessary 
to  the  validity  of  a  will  of  real  estate  are  those  required  by  the 
law  of  the  place  where  the  real  estate  is  situated,  while  those 
affecting  personal  property  are  such  as  are  required  by  the  law 
of  the  testator's  domicile  at  the  time  of  his  death.^  This  rule  is 
inconvenient  in  practice,  since  if  one  make  his  will  in  due  form  by 
the  law  of  his  domicile,  and  then  change  his  domicile  to  a  State 
where  other  forms  prevail,  his  will  is  revoked,  —  it  may  be  without 
his  being  actually  aware  of  it.^  The  rule  has  been  modified  in 
England,  so  as  to  make  the  will  of  a  British  subject  valid,  if  it 
conform  either  to  the  law  (1)  of  the  place  where  made,  or  (2)  of 
the  testator's  domicile  at  the  time  of  execution,  or  (3)  of  his 
domicile  of  origin  within  the  British  dominions.*  There  is  similar 
legislation  in  New  York.^ 

The  forms  of  execution  of  wills  in  this  country  (with  the  excep- 
tion of  Louisiana),  in  general,  closely  resemble  those  prevailing 
in  England.  There  are,  however,  important  differences  in  some 
of  the  States.  As  each  State  legislates  separately  on  the  subject, 
there  is  only  a  general  conformity.  Several  leading  rules  may, 
however,  be  stated. 

(1)  In  general,  the  will  must  be  subscribed  by  the  testator.  In 
other  words,  his  signature  must  be  found  at  the  end  of  the  will. 
The  words  "at  the  end"  have  elicited  much  discussion, —  so  much 
so,  in  England,  that  an  explanatory  statute  has  been  adopted.*^  A 
literal  interpretation  is  enforced  in  New  York,  as  where,  in  a  simi- 
lar requirement  as  to  the  signature  of  witnesses,  an  important 
clause  was  written  after  their  names.  This  fact  was  sufhcient  to 
make  the  whole  will  void.^  (a)  A  better  principle  is  found  in  the 
English  statute,  which  only  makes  void  what  is  written  after  the 
name.  The  will,  accordingly,  down  to  the  signature,  is  admitted 
to  probate.^ 

Cases  occur  where  there  is  in  the  body  of  the  will  a  reference 
to  some  extraneous  paper,  —  as,  for  example,  a  schedule,  etc.,  — 

1  7  Wm.  IV.  and  1  Vict.  c.  26,  §  11  ;  *  2i  &  25  Vict.  c.  114. 

28  &  29  Vict.  c.  72.  6  Code  of  Civ.  Pro.  §  2611. 

2  Wliicker  v.  Hume,  7  H.  of  L.  Cas.  ^  15  k  16  Vict.  c.  24. 

124.     In  the  Goods  of  Raffenel,  3  Sw.  &  T.  '''  Will  of  Hewitt,  91  N.  Y.  261.     See 

49  ;  Doglioni  v.  Crispin,  L.  R.  1  H.  of  L.  also  In  the  Matter  of  the  Will  of  O'Neil, 

Cas.  301  ;    Moultrie   v.  Hunt,  23  N.  Y.  Id.  516. 

394.  8  15  &  16  Vict.  c.  24,  §  1. 

3  See  Moultrie  v.  Hunt,  supra. 

(a)  Matter  of  Conway,  124  N.  Y.  455. 


588  THE  LAW  OF  PEKSONAL  PROPERTY. 

and  this  is  attached  to  the  will  at  its  end.  The  question  then  is, 
whether  the  signature,  being  followed  by  the  schedule,  is  "  at  the 
end "  of  the  will.  The  answer  is  in  the  affirmative,  since  the 
paper  referred  to  is  deemed  to  be  incorporated  into  the  will  at 
the  point  where  the  reference  is  made.^  (a) 

The  rules  governing  such  references  are  these :  1.  The  paper 
referred  to  must  be  at  the  time  in  existence.  A  testator  cannot 
direct  that  the  provisions  contained  in  a  future  codicil  shall 
be  carried  out,  unless  that  codicil  itself  be  properly  executed, 
nor  validly  refer  to  any  memoranda  or  papers  to  be  thereafter 
executed.^  The  court  must  be  able  to  identify  the  document  as 
existing  when  the  will  was  made.^  This  doctrine  will  be  applied, 
although  the  non-existing  paper  was  executed  subsequently  on  the 
same  day."*  There  is  this  qualification  to  the  rule,  that  if  the  will 
refers  to  a  non-existing  paper  which  comes  into  existence  between 
the  execution  of  a.  will  and  that  of  a  codicil,  the  reference  may  be 
upheld  by  sufficiently  clear  words  in  the  codicil.^  2.  The  reference 
in  all  cases  must  be  such  as  to  leave  no  doubt  as  to  the  identity  of 
the  paper.^  3  It  is  a  question  of  construction  to  decide  whether 
a  document  of  this  kind  is  sufficiently  incorporated  by  the  refer- 
ence." 4.  The  reference  may  be  to  a  foreign  will,  or  other  instru- 
ment, or  even  to  some  other  document,  though  of  great  length. 
The  court  has  a  discretion  to  admit  the  will  to  probate  without 
incorporating  on  the  records  the  paper  referred  to.^  Still,  a 
reference  to  a  will  executed  abroad,  as  a  matter  of  law,  makes  it  a 
part  of  the  will  in  which  the  reference  is  made.^ 

It  is  common  to  provide  in  the  statutes  that  the  will  may  be 
either  signed  or  subscribed  by  the  testator  himself,  or  by  some 
other  person  in  his  behalf.  In  the  latter  case,  the  signature  must 
be  authenticated  by  the  testator  in  some  prescribed  manner ;  for 
example,  it  must  be  acknowledged  by  the  testator  as  liis  signature, 
or   be   made    in   his    presence    and  under  his    direction  by  the 

1  Tonnele  v.  Hall,  4  N.  Y.  140.  427.     In  the  Goods  of   Brewis,   10  Jur. 

2  In  re  Norris,  14  W.  R.  348.  n.  s.  593  ;    Phelps  v.  Robbins,  40  Conn. 

3  Straubenzee  v.   Monck,  8  Jur.  n.  s.     250. 

1159.  7  Watson  v.  Arundell,  11  Ir.  R.  Eq.  53. 

«  Goods  of  Sims,  16  W.  R.  407.  s  !„  the  Goods  of  Cole,  20  L.  T.  n.  s. 

5  In  the  Goods  of  Raid,  38  L.  J.  758.  In  the  Goods  of  Peabody,  21  L.  T. 
'Prob.)  1.  N.  s.  730. 

6  Dickinson  v.  Stidolph,  11  C.  B.  n.  s.  9  In  the  Goods  of  Howden,  43  L.  J. 
341  ;  Allen  v.  Maddock,  11  Moore,  P.  C.  C.  (Prob.)  26. 


(a)  If   the    paper   is  testamentary  in  as  a  will.     Booth  v.  Baptist  Church,  126 

character  and   not  merely  descriptive   of  N.  Y.  215;  In  the  Matter  of  the  Will  of 

the  thing  given,  it  is,  in  some  States,  not  O'Neil,  91  N.  Y.  516  ;  Phelps  v.  Robbins, 

taken  as  a  part  of  the  will,  even  though  40  Conn.  250. 
properly  referred  to,  unless  authenticated 


TITLE    BY   ACT    OF   THE    LAW.  589 

signer.  It  has  been  held  that  the  word  "  acknowledgment "  in 
the  statute  implies  that  the  witnesses  to  whom  the  acknowledg- 
ment is  made  must  either  know  what  the  instrument  is,i  or  else 
the  witnesses,  being  in  the  testator's  presence,  must  be  able  to  see 
that  there  is  a  signature  upon  the  instrument  when  they  attest 
it.2  It  will  add  to  the  weight  of  the  evidence  if  there  is  a  full 
"  attestation  clause."  It  is  not  enough,  in  such  a  case,  vierely  to 
ask  the  witnesses  to  sign  the  instrument  as  a  paper.^  A  testator 
may  sign  by  means  of  a  mark.'^  A  testator  who  is  so  blind  as 
scarcely  to  distinguish  night  from  day  is  capable  of  acknowledging 
his  signature.^  This  ruling  makes  the  word  "  acknowledge  "  prac 
tically  equivalent  to  "  adopt." 

(2)  The  testator  must,  in  some  of  our  States,  including  New 
York,  declare  to  the  witnesses  that  the  instrument  that  they  are 
called  on  to  attest  is  his  last  will  and  testament. 

The  word  "declare"  does  not  mean  that  the  testator  should 
personally  make  any  statement  on  the  subject.  The  idea  in- 
tended to  be  conveyed  is,  that  he  makes  known  to  the  witnesses 
in  some  way,  —  as,  for  example,  by  the  statements  of  others,  to 
which  he  assents,  —  that  the  instrument  is  his  last  will,  etc.  (a).  It 
will  not  be  enough  to  state  that  it  is  his  will  and  deed.  That  is 
not  sufficiently  explicit.  This  requirement  seems  wise.  The 
object  of  having  the  witnesses  present  is,  that  they  may  observe 
the  capacity  of  the  testator,  and  his  freedom  from  restraint. 
Due  scrutiny  would  not  be  likely  to  be  made  if  they  supposed 
they  were  called  in  to  witness  an  ordinary  paper,  such  as  a  deed, 
mortgage,  or  release. 

(3)  The  next  point  to  be  considered  is  the  signature  of  wit- 
nesses. Upon  this  subject  there  is  much  variety  in  the  statutes 
of  the  various  States.  Some  require  that  the  witnesses  should 
attest  in  the  testator's  presence ;  others  omit  that  requirement. 
Again,  there  is  in  some  instances  a  provision  that  the  witnesses 
sign  in  each  other's  presence.  In  others,  this  is  not  necessary. 
The  wise  course  for  a  State  is,  not  to  make  this  branch  of  the 
subject  of  execution  complicated,  as  the  plain  intent  of  the  testa- 
tor may  be  subverted  by  an  unintelligent  act  on  the  part  of  the 
witnesses.  The  framers  of  the  New  York  statute  acted  wisely 
in  not  requiring  that  the  witnesses  should  attest  in  the  testa- 

1  Ilott  V.  Genge,  4  Moore,  P.  C.  C.  3  Fischer  v.  Popham,  L.  R.  3  P.  &  D. 
265.  246. 

2  Inglesant    v.    Inglesant,     L.    E.     3  *  Jackson  v.  Jackson,  39  N.  Y.  153. 
P.&D.  172.     In  the  Goods  of  Janaway,  44         5  King  v.  Berry,  5  Ir.  E.  Eq.  309. 

X.  J.  (Prob. )  6.  ^ 

(a)  Elkinton  v.  Brick,  44  N.  J.  Eq.  154.     Matter  of  Hunt,  110  IT.  Y.  278. 


590  THE    LAW   OF   PERSOXAL    PKOPEllTY. 

tor's  presence,  nor  in  the  presence  of  each  other.  All  that  remains 
is,  that  the  testator  should  request  that  the  witnesses  should 
attest  the  execution.  The  words  of  request  may  proceed  from 
another  if  the  testator  assent.'^  They  should  also  sign  before  his 
death.  By  means  of  this  simplicity  of  direction,  the  revisers 
avoided  the  extreme  refinements  of  the  doctrines  of  "  construc- 
tive presence "  which  had  grown  up  in  the  English  law.  The 
meaning  of  "  constructive  presence  "  was  that  the  testator,  by  a 
fiction,  was  deemed  to  be  present,  when,  for  all  practical  purposes, 
he  was  really  absent.^  (a) 

The  subscribing  witnesses  attest  in  New  York  by  signing  their 
names  at  the  end  of  the  will.^  The  present  English  law  provides 
that  they  shall  attest  and  subscribe  the  will,  no  mention  beiug 
made  of  their  names.  Still,  the  decisions  are  that  there  must  be 
either  a  signature  of  the  name  or  some  mark  intended  to  repre- 
sent it.*  The  hand  of  the  witness,  in  writing,  may  be  guided  by 
the  testator,^  or  by  another  witness.^  It  is  held,  however,  that  a 
mark  will  answer,  even  if  the  witness  is  able  to  write,  it  being 
made  with  intent  to  attest."  The  absence  of  intent  to  attest  will 
be  fatal,  as  where  the  witness,  having  written  his  name  l)efore  com- 
plete execution,  and  having  omitted  to  cross  the  initial  of  his  first 
name,  which  was  F.,  and  which  appeared  as  T.,  afterwards,  at  the 
time  of  execution,  crossed  it.  It  was  held  that  the  act  of  crossing 
could  not  be  construed  as  a  mark,  and  that  the  will  was  void.^ 
Under  the  New  York  statute  it  is  conceived  that  the  mark  of  a 
witness  duly  attached  to  the  instrument  will  suffice,  if  he  regard 
it  as  his  name  for  the  time  being,  and  the  formalities  attending 
execution  by  mark  be  complied  with.  The  testator  should  sign 
before  the  witnesses.^     If  the  witness  should  happen  to  sign  first, 

^  Gilbert  v.  Knox,  52  N.  Y.  125.  otherwise  not.     "  Constructive  presence  " 

2  Constructive  presence  was  established  is  thus  made  to  depend  on  the  testator's 

by  such  cases  as  Casson  v.  Dade,   1  Bro.  mental  state. 

C.  C.  99  ;    In  the  Goods  of  Trimnell,  11  3  2   R.    S.    63,    §   40,    cl.    4    (8th   ed. 

Jur.  N.  s.  248.     Cases  in  which  the  tes-  p.   2547). 

tator  was  held   not   to   be  constructively  *  Hindmarsh  r.   Charlton,   8  H.  of  L. 

present  are  Clerk  v.  Ward,   4  Bro.  P.  C.  Cas.  160. 

70  ;  Doe  v.  Manifold,  1  M.  &  S.  294,  and  &  Lewis  v.  Lewis,  2  Sw.  &  T.  153. 

Jenner  v.    Ffinch,    L.    R.    5    P.    D.   106.  6  i^  the  Goods  of  Frith,  4  Jur.   n.  s. 

Most   of  the   cases   arise  where  the  wit-  288. 

nesses  retire,  for  the  purpose  of  signing,  to  ^  i^  the  Goods  of  EjTion,  L.  R.  3  P.  & 

a  room  adjoining  that  where  the  testator  D.  92. 

is.     If  the  door  were  open,  and  the  testator  »  Hindmarsh  v.  Charlton,  supra. 

C026W  see  the  witnesses,  and  were  aware  that  ^  Rugg  v.  Rugg,  21  Hun,  383;    aff'd 

they  were  signing,  the  execution  is  valid  ;  83  N.  Y.  592. 


I 


(a)  Cf.  Walker  v.  Walker,   67  Miss.     Cook  v.  Winchester,  81  Mich.  581 ;  Riggs 
529  ;   Maynard  v.  Vinton,  59  Mich.  139  ;     v.  Riggs,  135  Mass.  238. 


TITLE    BY    ACT    OF    THE    LAW.  591 

the  ease  would  seem  to  be  governed  by  the  decision  in  the  House 
of  Lords  already  referred  to,^  and  it  would  seem,  he  would  be 
obliged  to  sign  again.  It  is  not  necessary  that  a  will  should  be 
sealed^  unless  the  statute  expressly  prescribes  it.^ 

Attestation  clause.  —  This  is  a  clause  at  the  end  of  the  will,  long 
in  use,  setting  forth  that  the  acts  required  by  law  have  been  in 
fact  performed.  No  particular  form  is  necessary.  It  may  run 
in  this  way:  "Subscribed,  sealed"  (if  sealed),  "published,  and 
declared  by  the  testator,  as  his  last  will  and  testament,  in  the 
presence  of  us,  who,  at  his  request  (in  his  presence  and  in  the 
presence  of  each  other)  have  signed  (or  subscribed)  our  names 
as  witnesses."  The  expressions  in  parentheses  may  be  omitted 
in  some  of  the  States.  They  can  be  used,  if  desired,  since  where 
they  are  unnecessary  they  are  harmless. 

An  attestation  clause  is  not  necessary  either  in  England^  or  in 
New  York."*  It  is  very  useful,  however,  as  a  memorandum  of 
what"  transpired  at  the  execution  of  the  will,  and  may,  when  the 
witnesses  are  dead  or  forgetful,  be  presumptive  evidence  that  all 
the  acts  therein  recited  actually  occurred.^  In  a  strong  case 
recently,  in  England,  the  attestation  clause  was  written  by  the 
testator  himself  to  a  codicil,  adapting  it  to  the  case  from  a  like 
clause  in  a  will  previously  executed  by  himself.  Of  the  two  wit- 
nesses, one,  a  governess,  deposed  that  she  purposely  abstained 
from  looking  at  any  of  the  writing  on  the  paper,  while  the  other, 
a  nurse,  at  the  time  of  execution  was  very  nervous.  Neither  of 
them  could  say  as  to  what  writing  was  on  the  paper,  nor  whether 
the  testator's  signature  was  there  when  they  signed,  and  both 
swore  that  they  did  not  see  him  sign.  Still,  the  will  was  upheld, 
on  the  presumption  in  its  favor  derived  from  the  attestation 
clause,  the  opposing  evidence  not  being  sufficient  to  overcome 
it.^  In  fact,  the  legal  presumption  that  a  will  with  a  perfect  attes- 
tation clause  was  properly  executed,  is  such  that  it  requires  the 
strongest  evidence  to  overcome  it.' 

It  should  be  added  that  the  attestation  by  the  witnesses  is  but 
a  prescribed  formality.  They  are  not  the  only  witnesses  that  can 
be  produced  before  the  court,  when  the  question  comes  up  on  a 
contested  will,  whether  it  was  properly  executed  or  not.  Other 
witnesses  of  tlie  facts  may  be  called  to  disprove  or  sustain  their 
version  of  the  occurrences.^ 

i  Hindiuarsh  v.  Charlton,   8  H.  of  L.  ^  Jackson  v.  Jackson,  supra. 

Cas.  160.  6  Wright  v.  Sanderson,  L.  R.  9  P.  D. 

2  Matter  of  Diez,  50  N.  Y.  88,  149  (Court  of  Appeal). 

3  See  Wills  Act  (1  Vict.  c.  26),  §  9.  '  0' Meagher  ?;.  O'Meagher,  L.  R.  (Ire.) 
In  the  Goods  of  Atkinson,  L.  R.  8  P.  D.  11  Ch.  117;  Matter  of  Kellum,  52  "N.  Y. 
165.  517;  Brown  v.  Clark,  77  N.  Y.  369. 

*  Jackson  v.  Jackson,  39  N.  Y.  153.  ^  Lowe  v.  Jolliffe,  1  W.  Bl.  365. 


rg2  THE  LAW  OF  PERSONAL  PROPERTY. 

IV  Revocation.  — ^^  a  will  does  not  take  effect  until  after  the 
testator's  death,  it  is,  as  a  general  rule,  revocable  by  him  at  his 
pleasure,  or  it  is,  in  legal  phrase,  "  ambulatory."  There  are,  how- 
ever cases  in  which  an  instrument  in  the  form  of  a  will  cannot 
be  revoked.  It  may  have  assumed  in  substance  the  form  of  a 
contract.  The  general  subject  may  thus  be  discussed  under  two 
heads,  —  revocable  and  non-revocable  wills. 

Revocable  wills.  — A.  will  may  be  revoked  either  partially  or 
wholly.  The  revocation  may  be  either  express  or  implied.  A 
revocation  may  be  implied  from  future  testamentary  acts,  either 
absolutely  or  partly  inconsistent  with  a  prior  one.  These  various 
cases  will  be  considered  separately. 

(1)  Express  revocation.  A  will  may  be  expressly  revoked 
either  by  words  or  by  acts.  An  express  revocation  by  words  is 
where  there  is  a  so-called  "  revoking  clause  "  in  a  later  will  or 
codicil.  Appropriate  words  for  a  sweeping  revocation  are:  "I 
hereby  revoke  any  and  all  former  wills  and  codicils  by  me  made." 
More  special  words  must  be  used  to  revoke  particular  instruments 
or  clauses  in  a  will  or  codicil.  In  such  a  special  case  it  is  judicious 
to  use  words  confirming  the  will  or  codicil  in  all  other  respects 
than  those  to  which  the  revocation  applies.  As  a  general  rule,  at 
the  present  time,  a  revoking  instrument  should  be  executed  with 
the  same  formalities  as  a  will  or  codicil  itself.^ 

Revocation  by  act  done,  and  without  written  words  complying 
with  the  statutes,  takes  place  where  there  is  a  partial  or  total 
destruction  of  an  instrument  by  the  testator,  or  under  his  direc- 
tion;  such  acts  as  cancelling,  tearing,  erasing,  or  obliterating, 
with  the  intent  either  wholly  or  partially  to  destroy  the  will,  may 
be  referred  to.  In  all  such  cases,  regard  must  be  had  both  to  the 
act  done  and  to  the  intention  of  the  testator.  The  act  without  a 
revoking  intent  is  of  no  significance.^  Accordingly,  destruction 
of  the  will  in  the  heat  of  passion,  where  there  appears  but  a  mo- 
mentary intent,  or  by  accident,  would  have  no  effect.^  The  con- 
tents of  the  will  could  be  proved  by  oral  evidence. 

Revocation  by  the  common  law  was  broader  than  that  which 
prevails  under  modern  statutes.  By  common  law,  any  act  of  the 
testator  evincing  his  intention,  without  words,  would  suffice.*  A 
slight  tearing  of  the  will,  and  throwing  it  on  the  fire,  with  any 
portion  of  it  burnt,  would  suffice,  though  it  was  in  substance  saved 
by  some  person  without  the  testator's  knowledge.^  The  present 
English  statute  mentions  burning,  tearing,  or  otherwise  destroy- 

1  See,  in  England,  7  Wm.  IV.  &  1  Vict.  ^  Doe  v.  Perkes,  3  B.  &  Aid.  489. 
c  26,  §  20,  in  New  York,  2  R.  S.  64,  §  42  *  Doe  v.  Harris,  8  A.  &  E.  1. 

{8th  ed.  p.  2548).  s  Bibb  v.  Thomas,  2  W.  Bl.  1043;  Doe 

2  Buvtenshaw  v.  Gilbert,  Cowp.  49,  52.     v.  Harris,  supra. 


TITLE    BY   ACT    OF   THE    LAW,  593 

ing  the  will.i  Under  this  statute  it  has  been  held  that  tearing  off 
a  substantial  part  of  the  will  is  sufficient,  —  e.g.,  the  seal  and  part 
of  a  word  ,2  or  the  names  of  the  subscribing  witnesses.^  It  is  not 
sufficient  to  run  a  pen  through  the  lines  of  various  parts  of  the 
will,  to  write  on  the  back  of  it  the  words  "  this  is  revoked," 
and  to  throw  it  among  a  heap  of  waste  papers.  There  must,  under 
the  statute  (§  20),  be  ^positive  act  of  destruction.^ 

The  language  of  the  New  York  statute  closely  resembles  the 
English.  The  ivill  must  be  "  burnt,  torn,  cancelled,  obliterated, 
or  destroyed."  ^  The  word  "  obliterated,"  as  used  in  this  section, 
refers  to  the  whole  will,  and  not  to  a  particular  provision,  and,  ac- 
cordingly, under  this  statute,  part  of  a  will  cannot  be  revoked  by 
obliteration.^  Under  the  existing  English  law  there  is  a  rule  op- 
posed to  obliteration  of  a  part  of  the  will,  unless  affirmed  in  the 
mars;in  or  otherwise  bv  the  signature  of  the  testator  and  the  attes- 
tation  of  witnesses.'^  If  the  erasures  are  so  complete  that  the  words 
cannot  be  read  or  proved,  probate  is  granted,  with  the  erased  words 
in  blank.^  This  practice  is  more  convenient  than  that  prevailing 
in  New  York. 

Important  questions  arise  as  to  presumptions.  It  is  a  general 
principle  of  law  that  alterations  and  erasures  appearing  on  the 
face  of  the  will  are  presumed  to  have  been  made  after  execution. 
The  effect  of  this  principle  is,  that  an  alteration  has  no  effect  in 
the  way  of  substitution,  unless  there  is  satisfactory  evidence  that 
it  was  made  before  execution.^ 

Intent  is  a  vital  element  in  revocation.  It  may  be  absolute  or 
qualified.  The  testator,  in  an  act  of  revocation,  may  be  laboring 
under  a  mistake  of  facts.  For  example,  he  may  falsely  suppose  a 
beneficiary  under  his  will  to  be  dead,  and  revoke  on  that  supposi- 
tion ;  or  he  may  strike  out  a  name  with  a  view  of  substituting 
another,  and  the  substitution  may  fail  by  reason  of  non-compliance 
with  the  rules  of  law.  In  such  cases,  there  is  no  true  intent  to 
revoke,  and  the  will  stands  unrevoked.  Another  instance  is  where 
he  revoked  because  he  falsely  supposed  that  his  will  was  invalid;  i*^ 
so  if  he  destroyed  his  will  in  a  fit  of  delirium  tremens.^^ 

1  7  Wm.  IV.  &  1  Vict.  c.  26,  §  20.  "  Greville  v.  Tylee,  7  Moore,  P.  C.  C. 

'^  Price  V.  Powell,  3  H.  &  N.  341.  320. 

3  In  the  Goods  of  Dallow,  31  L.  J.  »  In  the  Goods  of  James,  1  Sw.&T.  238. 
(Prob.)  128.  Other  instances  are  :  In  the  »  Greville  v.  Tylee,  7  Moore,  P.  C.  C. 
Goods  of  Marshall,  17  W.  R.  687;  Wil-  320;  Doe  v.  Palmer,  16  Q.  B.  747;  Cooper 
liams  V.  Tj'ley,  5  Jur.  N.  s.  35  ;  In  the  v.  Bockett,  4  Moore,  P.  C.  C.  419;  Wet- 
Goods  of  Harris,  10  Jur.  N.  s.  684.  more  v.    Carryl,   5   Redf.    544;    Dyer    v. 

*  Cheese  v.  Lovejoj',  L.  R.  2  P.  D.  251.  Erving,  2  Dem.  160. 

5  2  R.  S.  64,  §  42  (8th  ed.  p.  2548.)  lo  Giles  v.  Warren,   L.   R.   2    P.   &  D. 

6  Lovell  V.  Quitman,  25  Hun,  537;  401 ;  Clarkson  r.  Clarkson,  2  S\v.  &  T.  497. 
afiF'd  88  X.  Y.  377.  "  Brunt  v.  Brunt,  L.  R.  3  P.  &  D.  37. 

38 


594  THE  LAW  OF  PERSONAL  PROPERTY. 

Out  of  these  principles  grows  the  doctrine  of  "  dependent  rela- 
tive revocation."  The  meaning  of  this  expression  is,  that  there 
is  a  conditional  revocation,  depending  on  the  successful  substitu- 
tion of  a  new  clause  in  the  place  of  an  existing  one.  Accordingly, 
if  the  substitution  be  not  accomplished,  there  is  no  true  intent  to 
revoke,  and  the  original  clause  remains.  The  following  case  is  a 
good  illustration.  The  testator  had  given  to  his  wife  three  hun- 
dred pounds ;  to  his  son  James,  three  hundred  pounds.  Over  the 
word  "  three  "  to  his  wife,  he  had,  after  execution,  written  "  one," 
over  "  three  "  to  his  son,  he  had,  in  like  manner,  written  "  five." 
As  these  later  written  words  had  no  effect  by  way  of  substitution, 
the  will  was  probated  as  it  originally  stood,^ 

The  doctrine  of  dependent  relative  revocation  came  into  the  law 
after  the  enactment  of  the  Statute  of  Frauds  in  England,  requiring 
ceremonies  to  be  observed  in  the  execution  of  wills  of  real  estate.^ 
Some  of  the  leading  cases  are  cited  in  the  note.^  (a)  That  statute 
is,  in  substance,  the  law  of  the  American  States.  When  its  prin- 
ciples were  extended  to  wills  of  personal  property,  the  law  of 
conditional  revocation  followed  the  extension,  and  is  logically 
applicable  to  every  case  of  an  attempted  revocation  by  way  of 
substitution,  where  the  substituted  provision  fails  to  take  effect. 

(2)  Implied  revocation.  There  are  three  principal  classes  of 
cases  of  implied  revocation.  1.  Inconsistent  later  wills  or  codi 
cils.  2.  Subsequent  marriage  of  the  testator,  or  marriage  and 
birth  of  issue.     3.    Statutory  provisions  working  a  revocation. 

1.  It  is  a  well-settled  rule  that  if  a  subsequent  will  or  codicil 
is  inconsistent  with  a  prior  will,  and  there  be  no  revoking  clause, 
there  is  an  implied  revocation  so  far  as  the  two  instruments  are 
inconsistent,  but  no  further.^  Under  such  circumstances,  both  pa- 
pers constitute  the  testator's  will,^  The  intention,  however,  is  to 
be  regarded,  and  if  it  appear  that  this  was  to  dispose  of  the  property 
in  a  different  manner  from  the  intention  pervading  a  former  will, 
the  latter  will  be  revoked  as  a  whole,  even  though  in  some  par- 
ticulars the  subject-matter  of  the  earlier  will  is  not  completely 
covered.^     This  doctrine  can  only  be  applied  where  the  disposi- 

1  In  the  Goods  of  Nelson,  6  Ir.  R.  Eq.  2  29  Car.  II.,  c.  3. 

569;  Brooke  v.  Kent,   3  Moore,  P.  C.  C.  3  Onions  d.  Tyrer,  1  P.  Wms.  343;  Bibb 

334;  Clarkson  v.  Clarkson,  2Sw.  &T.  497.  v.  Thomas,  2  W.'  Bl.  1043;  Burtenshaw  v. 

See  Ex  parte  Earl  of  Ilchester,  7  Ves.  348,  Gilbert,  Cowp.  49,  52. 
where  the  doctrine  is  explained.    The  case  4  Lemage  v.  Goodban,  L.  R.  1  P.  &  D. 

of  Brooke  v.  Kent,  above  cited,  is  a  leading  57. 

anthority.     In  this  case  all  the  alterations  5  Geaves  v.  Price,  32  L.  J.  N.  s.  113. 

were  by  way  of  reduction  of  amounts  stated  6  Dempsay  v.  Lawson,  L.  R.   2  P.  D. 

in  the  will.  qq 


(«)  See  Jarraan  on  Wills  (6th  Am.  ed.),  154. 


i 


TITLE    BY    ACT    OF   THE    LAW.  595 

tions  in  the  two  instruments  are  so  inconsistent  that  botli  cannot 
stand  together.! 

2.  It  has  long  been  a  rule  of  law  that  if  an  unmarried  man, 
without  children  by  a  former  marriage,  makes  his  will,  devising 
all  his  estate,  and  making  no  provision  for  prospective  issue,  and 
subsequently  marries,  and  has  issue  by  the  marriage,  the  will 
is  tacitly  revoked.^  The  rule  as  to  issue  includes  a  posthumous 
child, 3  but  does  not  extend  at  the  common  law  to  the  case  where 
a  man,  married  when  he  makes  his  will,  has  a  child  subsequently 
born.^  The  ground  of  the  rule  is,  that  there  has  been  such  a 
change  in  the  circumstances  of  the  testator  as  to  presumably 
lead  to  a  change  of  intention  on  his  part.  The  rule  was 
somewhat  different  when  a  single  woman  made  a  will  and  then 
married.  Then  a  revocation  took  place  without  the  birth  of  issue. 
She  had  come  under  the  power  of  her  husband,  had  lost  her  ca- 
pacity by  her  own  act  to  make  a  will  or  to  revoke  one  already 
made,  and  the  law,  in  aid  of  her  incapacity,  caused  a  revocation, 
which  it  was  presumed  that  she  would  have  made  after  marriage 
if  she  had  had  the  power.  Under  the  present  law  of  England,  a 
will  made  before  marriage,  whether  by  man  or  woman,  is  revoked 
by  marriage.^  The  rule  in  New  York  is  not  the  same  in  the  case 
of  the  wills  of  women  as  of  men.  The  will  of  a  woman  is  revoked 
by  lier  subsequent  marriage.^  In  the  case  of  a  man,  however,  in 
order  that  there  may  be  an  implied  revocation,  the  will  must  dis- 
pose of  the  whole  estate  of  the  testator  ;  there  must  be  subsequent 
marriage  and  birth  of  issue,  and  either  the  wife  or  the  issue  must 
be  living  at  the  testator's  death ;  there  must  also  be  no  provision 
for  issue  in  any  settlement,  or  in  the  will,  or  else  no  such  mention 
of  them  as  to  show  an  intention  not  to  make  a  provision  for  them. 
When  all  these  circumstances  concur,  there  is  a  conclusive  pre- 
sumption of  an  intention  to  revoke,  and  no  evidence  beyond  that 
which  is  above  indicated  can  be  offered  to  rebut  the  presumption." 
The  limit  thus  placed  upon  the  evidence  that  can  be  used  to  rebut 
the  presumption  of  revocation  is  salutary,  and  prevents  litigation. 
It  is  an  improvement  upon  the  common  law. 

3.  A  partial  revocation  of  a  will  may  occur  under  a  statute 
providing  that  in  case  a  child  be  born  to  a  testator  then  married, 
after  making  his  will,  without  any  provision  of  the  kind  already 
detailed  having  been  made  for  such  child,  the  child  shall  succeed  to 
such  portion  of  the  parent's  estate  as  he  would  have  succeeded  to 

1  O'Leary  v.  Douglass,  L.  R.  (Ire.)  1          4  Dog  v.  Barford,  4  M.  &  S.  10. 
Ch.  Div.  45.  5  7  ^r^.  jy.  &  i  Vict.  c.  26,  §  18. 

2  Marston  v.  Fox,  8  A.  &  E.  14.  6  2  R.  S.  64,  §  44  (8th  ed.  p.  2548). 

3  Doe  V.  Lancashire,  5  T.  R.  49.  ^  2  R.  S.  64,  §  43  (8th  ed.  p.  2548). 


596  THE  LAW  OF  PERSONAL  PROPERTY. 

ill  case  the  parent  had  died  intestate.^  This  section  did  not  at 
one  time  include  a  mother,  though  it  does  now.^ 

A  special  form  of  revocation  exists  where  a  testator  bequeaths 
a  particular  item  of  property,  and  later  changes  his  relations  to  it, 

perhaps  mortgages  it,  or  contracts  to  sell  it,  etc.    This  was  held 

at  common  law,  by  a  subtle  form  of  reasoning,  to  be  a  revocation. 
The  doctrine  was  for  the  most  part  applied  to  devises  of  real 
estate,  though  it  could  be  extended  to  bequests  of  specific  per- 
sonal property.  The  effect  of  such  incumbrances  or  incomplete 
transfers  is  now  in  general  regulated  by  statute.  The  English 
statute  prevents  such  revocation  so  far  as  any  interest  still  belongs 
to  the  testator.  The  same  general  remark  applies  to  New  York 
legislation.^  The  substance  of  the  legislation  is,  that  the  devisee 
or  legatee  shall  take  the  property  devised  or  bequeathed,  subject 
to  all  contracts  and  charges  made  by  the  testator  during  his  life, 
though  if  there  be  an  absolute  inconsistency  between  the  provi- 
sions of  the  will  and  the  testator's  subsequent  acts,  there  will  be  a 
revocation. 

Non-revocahle  wills.  —  One  may  make  a  valid  promise  for  a 
consideration  to  bequeath  a  sum  of  money  or  a  chattel  to  another. 
Should  he  fail  to  fulfil  the  promise,  his  representatives  are  liable.*  (a) 
So,  if  the  party  has  made  his  will  in  accordance  with  his  agree- 
ment, it  will  not  be  lawful  for  him  to  revoke  it.  If  he  does,  he 
will  at  least  be  liable  in  damages  to  the  other  party  to  the  con- 
tract. It  is  well  settled  that  a  covenant  not  to  revoke  is  a  valid 
one,  subject  to  general  rules  governing  the  validity  of  contracts.^ 

There  is  a  single  authority  to  the  effect  that  if  a  will  be  actually 
made  in  accordance  with  a  written  promise,  it  cannot  be  revoked.^ 
It  will  be  different  with  an  oral  promise,  by  reason  of  the  Statute 
of  Frauds,  if  the  contract  related  to  a  will  of  land.  Accordingly, 
where  a  woman  had  served  an  intestate  as  a  housekeeper  without 
wages,  for  many  years,  and  had  been  induced  to  give  up  other 
prospects  of  establishment  in  life  by  reason  of  an  oral  promise 
that  she  should  have  a  life  estate  in  the  intestate's  land,  and  the 
latter  had  executed  an  instrument  in  the  nature  of  a  will  in  her 
favor,  which  failed  for  want  of  proper  attestation,  it  was  decided 

1  See  in  New  York,  2  R.  S.  65,  §  49  ^2  Sheppard's  Touchstone  (Preston's 
(8th.  ed.  p.  2549).  ed.),  401 ;  Sugden  on  Powers (8th  ed.)  214  ; 

2  Cotheal  v.  Cotheal,  40  K  Y.  405,  Robinson  v.  Ommanuey,  L.  R.  21  Ch.  D. 
408.  780  ;    (afifd  in  Court  of  Appeal)    23  Id. 

3  2   R.  S.  64-65,  §§   45-48  (8th  ed.,  285  ;  Sherman  v.  Scott,  27  Hun,  331. 
pp.  2548-2549).  6  Loffus  v.  Maw,  8  Jur.  n.  s.  607. 

*  Ridley  v.  Ridley,  11  Jur.  n.  s.  475. 


(a)  Collier  v.  Rutledge,  136  N.  Y.  621;  Emery  v.  Darling,  33  N.  E.  R.   (Ohio), 
715. 


TITLiu   BY    ACT   OF   THE    LAW.  597 

that  the  promise  could  not  be  enforced.  The  decision  of  Justice 
Stephen  to  the  contrary  was  reversed.^  No  case  but  Loffus  v. 
Maw  precisely  holds  that  the  will  is  absolutely  irrevocable,  and 
the  subject  requires  further  adjudication.  There  appears  to 
be  no  serious  objection  to  the  view  in  that  case,  the  will  having 
been  regularly  executed  and  the  Statute  of  Frauds  having  no 
application. 

The  topic  of  "  mutual  wills  "  demands  attention  in  this  connec- 
tion. There  are  but  few  cases  on  this  subject.  In  the  outset,  a 
distinction  should  be  taken  between  a  joint  will,  executed  by  two 
or  more  persons,  and  mutual  wills.^  In  a  joint  will,  two  or  more 
persons  simply  unite,  without  any  element  of  promise  or  reci- 
procity of  obligation.  In  mutual  wills  there  is,  as  the  words 
import,  mutuality  of  obligations  or  of  benefits.  While  both  live, 
the  will  of  each  may  be  revoked  at  pleasure.  After  the  death  of 
one,  whose  property  has  devolved  in  a  way  understood  between 
the  testator  and  the  survivor,  the  survivor  may  have  lost  the 
power  to  revoke.^  In  the  case  of  Dufour  v.  Pereira,"*  Lord  Camden 
held  that  a  husband  and  wife  having  made  a  mutual  will,  and  the 
wife,  after  her  husband's  death,  having  possessed  his  estate  and 
enjoyed  it  during  her  life,  by  that  act  bound  her  assets  to  make 
good  all  her  bequests  in  the  mutual  will,  and  that  this  was  irrevo- 
cable.^ Cases  in  which  mutual  wills  are  considered  in  this  country 
will  be  found  in  the  note.^  (a) 

V.  Revival  and  republication.  —  Before  entering  upon  the 
discussion  of  this  topic,  reference  should  be  made  to  "  codicils." 
The  word  "  codicil  "  is  derived  from  the  Roman  law,  and  in- 
cluded every  disposition  of  a  testamentary  nature  which  was  not 
a  strict  and  technical  testament,  which  regularly  contained  the 
institution  of  at  least  one  direct  heir.  A  codicil  was  informal, 
and  might  at  first  be  either  oral  or  written.  In  the  later  law  it 
must  be  made  in  accordance  with  prescribed  forms. 

1  Alderson  v.  Maddison,  L.  R.  7  Q.  B.  Eoman-Dutch    law    are     considered     in 
D.  174  (Court  of  Appeal).     See  also  De  Denyssen  y.  Mostert,  L.  R.  4  P.  C.  236. 
Moss  V.  Robinson,  46  ilich.  62.  *  1  Diek.  419. 

2  In  the  Goods  of  Stracey,  Deane,  6.  A  ^  ^q  this  effect  is  Taylor  v.  Mitchell, 
will  executed  by  two,  of  the  property  of  87  Pa.  St.  518. 

one,  is  really  a  separate  and  not  a  joint  ^  Wood  v.   Roane,   35  La.  Ann.   865  ; 

will.    Kunnen  v.   Zurline,  2  Cin.    (Ohio)  Betts  v.  Harper,  39  Ohio  St.  639;  Allen  v. 

440  ;  Rogers'  Case,  11  Me.  303.  Allen,  28   Kan.  18  ;   Hershey  v.  Clark,  35 

3  Dufour  V.  Pereira,  1  Dick.  419  ;  Lord  Ark.  17  ;  Re  Diez,  50  N.  Y.  88  ;  Evans  v. 
Walpole  V.  Lord  Orford,  3  Ves.  402  ;  Smith,  28  Ga.  98  ;  Clayton  v.  Liverraan, 
Hobson  V.  Blackburn,  1  Add.  274  ;  Schu-  2  Dev.  &  B.  Law  (N.  C.)  558  ;  Walker  v. 
maker  v.  Schmidt,  44  Ala.  454.  The  prin-  Walker,  14  Ohio  St.  157. 

ciples  governing  mutual  wills  under  the 

(a)  See  alsoCawley's  Estate,  136  Pa.  St.  628  ;  Hill  v.  Harding,  13  Ky.  Law  R.  380. 


598  THE  LA.W  OF  PERSONAL  PROPERTY. 

In  English  and  American  law,  a  codicil  is  an  addition  to,  and 
presupi)Oses  the  existence  of,  a  will.  It  may  either  change  the 
provisions  of  a  will  or  dispose  of  subjects  not  embraced  therein. 
There  is  no  limit  to  the  number  of  codicils.  Earlier  codicils,  so 
far  as  they  are  inconsistent  with  later  ones  in  force,  give  way. 

Everything  that  can  be  accomplished  by  a  codicil  can  be  done 
by  a  later  will  as  well.  There  is  somewhat  less  formality  in 
drawing  a  codicil,  and  it  is  frequently  resorted  to,  particularly 
where  changes  or  additions  of  a  minor  nature  are  to  be  made. 

By  the  term  "  republication  "  is  meant  the  due  execution  of  a 
later  testamentary  instrument  acting  upon  an  earlier  one,  confirm- 
ing or  establishing  it,  either  in  whole  or  in  part.  The  earlier 
instrument  is  thus  made  to  speak  from  the  date  of  the  republica- 
tion. It  may  be  either  express  or  implied.  An  express  republi- 
cation, as  the  words  import,  means  a  sufficient  reference  to  the 
earlier  instrument  in  the  later  one.  The  republication  will  be 
complete,  though  the  reference  was  a  mistaken  one.^  If  there  be 
a  mistake  in  a  codicil  in  referring  to  a  previous  will  as  still  sub- 
sisting, when  in  fact  it  is  not,  the  codicil  is  not  on  that  ground 
void.2  A  republication  may  be  implied  from  the  fact  that  a  memo- 
randum, duly  executed  as  a  codicil,  is  written  on  the  same  paper 
as  an  earlier  will.^  This  principle  will  not,  it  seems,  by  extended 
to  the  case  of  a  mere  physical  annexation  of  the  two  papers,  — 
e.  g.,  by  a  piece  of  tape.  The  intention  to  revive  must  appear  in 
the  instrument  itself.*  Implied  revivals  have  been  carried  very 
far  by  the  courts.  It  is  the  policy  of  the  present  English  law  to 
do  away  at  least  with  the  more  extreme  forms  of  implied  revivals 
of  wills.  One  of  the  most  objectionable  of  the  common-law  rules 
is,  that  if  a  testamentary  instrument  be  revoked  by  a  later  one, 
and  then  the  revoking  instrument  be  in  turn  revoked,  the  first 
instrument  is  revived  by  republication. 

This  rule  has  given  way  in  modern  law.^  It  is  provided  by  the 
New  York  statute  that  the  destruction,  cancelling,  or  revocation 
of  a  second  will  shall  not  revive  the  first,  unless  it  appear  by  the 
terms  of  the  revocation  that  it  was  the  intention  of  the  testator  to 
revive  the  first  will ;  or  unless,  after  such  destruction,  etc.,  the 
testator  shall  republish  his  first  will.^     Some  of  the  decisions  in 

1  In  the  Goods  of  Lewis,  7  Jur.  N.  s.  ^  T}jg  English  statute,  7  Wm.  IV.  &  1 
220.  Vict.  c.  26,  §  22,  provides  that  no  will  or 

2  In  the  Goods  of  Law,  21  L.  T.  N.  s.  part  of  a  will  which  shall  have  been  re- 
399.  voked,  shall  be  revived  except  by  re-exe- 

^  In  the  Goods  of  Terrible,  1  S.  &  T.  cution,  or  by  a  codicil  showing  an  intention 

140  ;  Neate  v.  Pickard,  2  N.  Cas.  406.  to  revive. 

*  Marsh  v.  Marsh,  1  Sw.  &T.  528.    See         6  2  E.  S.  67,  §  53  (8th  ed.,  p.  2550). 
remarks  of  Cresswell,  J.,  p.  533. 


' 


TITLE    BY   ACT    OF   THE    LAW.  599 

England  upon  the  statute  there,  as  it  closely  resembles  our  own, 
may  properly  be  referred  to. 

The  intention  to  revive  must  appear  on  the  face  of  the  instru- 
ment, or  by  a  disposition  of  property  inconsistent  with  any  other 
intention.!  Thus,  a  second  codicil  which  refers  to  a  will  of  a 
particular  date,  but  not  to  a  subsequent  codicil  prior  to  itself,  does 
not  revive  the  latter.^  The  principle  is,  that  a  reference  in  a 
second  codicil  to  a  will,  will  not  set  up  an  intermediate  first 
codicil,  which  is  in  itself  invalid.  At  the  same  time,  the  failure 
to  refer  to  a  valid  intermediate  codicil  does  not  by  implication 
revoke  it.^  The  following  is  an  instance  of  revival  since  the 
statute.  A  testator  made  a  will,  March  13,  1876,  revoked  it  by  a 
second  will,  April  29,  1876,  and,  on  June  9,  1880,  made  a  codicil 
commencing,  "  I  make  and  publish  this  codicil  to  my  will  dated 
13  March,  1876."  He  also  cancelled  a  gift  in  that  will  as  having 
been  paid  by  him.  The  codicil  revived  the  first  will,  and  the 
three  documents  were  admitted  to  probate.^ 

VI.  Probate.  —  From  the  earliest  period  there  has  been  this 
peculiarity  in  the  law  of  testaments  (wills  of  personal  property), 
that  their  validity  should  be  passed  upon  by  a  court  having  pro- 
bate powers.  Without  this  judicial  inquiry  and  sanction,  no 
action  could  be  brought  to  enforce  claims  due  to  the  estate  of  the 
deceased,  nor  could  any  liabilities  be  enforced  against  it.  This 
probative  power  resided  in  the  ecclesiastical  court. 

The  methods  of  the  ecclesiastical  court  were  borrowed  from  the 
Eoman  law,  as  well  as  the  principles  applied  to  the  construction 
and  interpretation  of  the  instrument  itself.  The  jurisdiction  of 
the  ecclesiastical  courts  was  displaced  in  England  by  20  &  21  Vict. 
c.  77,  taking  effect  on  January  1,  1858,  and  was  vested  thence- 
forward in  a  court  of  probate.  Up  to  that  time  decisions  of  cases 
must  be  sought  in  ecclesiastical  reports. 

Owing  to  the  severance  of  all  political  connection  between 
Church  and  State  in  this  country  at  the  time  of  our  Revolution, 
there  could  be  no  ecclesiastical  courts  in  the  strict  sense  here. 
Various  methods  were  adopted  in  the  States  for  the  probate  of 
wills,  and  probate  courts  were  established.  In  a  number  of  the 
States  there  was  a  close  adoption  of  English  methods.  In  New 
York,  a  court  was  established  in  each  county,  called  a  surrogate's 
court,  with  the  right  of  appeal  to  the  court  of  general  jurisdiction. 

1  In  the  Goods  of  Steele,  L.  R   1  P.  &  3  Green  v.  Tribe,  L.  R.  9  Cli.  D.  231. 
D.  575.                                                                    *  In  the  Goods  of  Edge,  L.   E.  (Ire.) 

2  Burton  v.  Newbery,  L.   R.   1  Gh.  D.  9  Ch.  D.  516. 
234  ;  In  the  Goods  of  Reynolds,   L.  R.  3 

P.  &  D.  35. 


600  THE  LAW  OF  PERSONAL  PROPERTY. 

It  was  a  rule  of  English  testamentary  law  that  a  will  disposing 
of  real  property  alone  could  not  be  proved  in  the  testamentary  court. 
There  must  be  personal  property  to  give  the  court  jurisdiction,^ 
or  at  least  there  must  be  an  executor.^  A  similar  rule  applies  to 
the  probate  court  there.'^  The  jurisdiction  in  the  States  of  this 
country  depends  on  the  local  statutes. 

It  is  a  further  rule  that  a  will  disposing  solely  of  personal  prop- 
erty situated  in  a  foreign  country  will  not  be  probated.  There 
must  be  assets  within  the  jurisdiction.*  The  general  rule  that  the 
courts  of  the  domicile  of  the  testator  have  the  power  of  administer- 
ing the  personal  estate  must  be  qualified  by  the  statement  that  the 
situs  of  property  will  of  itself  confer  jurisdiction.^  The  Court  of 
Chancery  has  no  original  jurisdiction  to  determine  the  validity  of 
a  will  of  personal  estate.  The  power  to  do  that  is  exclusively  vested 
in  the  probate  court.  It  may,  however,  interfere  for  the  purpose 
of  protecting  the  property  while  litigation  is  pending.^  There  is 
a  dictum  in  the  Court  of  Appeal  that  the  probate  court  has  ex- 
clusive jurisdiction  to  revoke  a  will.'' 

It  is  not  intended  in  this  work  to  consider  details  of  procedure 
in  the  probate  court,  but  only  to  present  a  general  outline.  The 
course  of  practice  is  for  the  persons  named  as  executors,  or  other 
parties  interested,  to  present  a  petition  to  the  court  that  the  will 
may  be  proved.  A  citation  is  accordingly  issued  summoning  the 
next  of  kin  and  others  interested  in  the  estate  (as  the  local  rules 
may  provide)  to  appear  at  a  fixed  day,  and  to  attend  the  proceed- 
ings. This  citation  is  served  in  a  prescribed  manner  upon  the 
parties  cited.  At  the  day  fixed,  or  at  an  adjourned  day,  those  who 
seek  to  sustain  the  will  are  heard.  The  regular  course  is,  to  pro- 
duce the  subscribing  witnesses,  if  they  can  be  had,  and  to  ascer- 
tain from  them  whether  the  formalities  required  by  law  were 
observed,  and  whether  any  fraud,  duress,  or  undue  influence  was 
exercised. 

Although  the  subscribing  witnesses  are  not  experts,  they  may 
give  their  opinion  as  to  the  mental  capacity  of  the  testator.  If 
their  testimony  sustains  the  will,  and  there  is  none  opposing  it, 
the  will,  as  a  matter  of  course,  is  admitted  to  probate.  This  is  the 
stage  of  proceedings  at  which  any  of  the  parties  entitled  to  contest 
the  will  may  do  so.    It  may  be  shown  by  proper  evidence,  including 

1  In  the  Goods  of  Barden,  L.  E.  1  P.  &  ^  Compare  Enohin  v.  Wylie,  10  H.  of 
I).  325.                                                               L.  Cas.  1,  with  Ewing  v.  Orr'Ewing,  L.  R. 

2  In  the  Goods  of  Jordan,  L.  E.  1  P.  &     9  App.  Cas.  34. 

!>•  555.  6  Rynes  v.  Wellington,   9  Beav.   579  ; 

"  Camphellu.  Lucy,  L.  E.  2P.  &  D.  209.  Allen  v.  Jl'Pherson,  1  H.  of  L.  Cas.  191. 

*  In  the  Goods  of  Coode,  L.  P..  1  P.  &         '  Piiestman  v.  Thomas,  L.  E.  9  P.  D. 

D.  449.  210. 


TITLE    BY   ACT   OF    THE    LAW.  601 

the  testimony  of  witnesses,  that  the  professed  will  was  never  duly- 
executed  as  a  matter  of  form,  or  that  the  testator  had  not  capa- 
city to  make  it,  or  that  it  was  obtained  by  fraud,  duress,  abuse  of 
confidential  relations,  or  undue  influence.  These  various  objec- 
tions may  be  presented  either  singly  or  in  combination.  Their 
force  will  be  increased  by  the  fact  that  the  capacity  of  the  testator 
was  impaired,  even  though  he  had  sufficient  ability  to  make  the 
will  had  he  been  left  uninfluenced.  The  subject  of  "  undue  influ- 
ence "  is  largely  a  matter  of  equity  jurisprudence,  and  its  details 
will  be  found  in  treatises  on  equity,  and  in  the  reported  decisions. 

The  whole  matter  is  thus  one  of  evidence.  A  probate  court,  as 
organized  at  common  law,  has  no  jury.  The  judge,  in  such  a  case, 
in  determining  the  validity  of  the  execution  of  the  instrument  be- 
fore him,  may  follow  the  testimony  of  one  subscribing  witness 
when  adverse  to  that  of  the  other,  or  sustain  the  will  though  all 
of  the  witnesses  testify  that  the  requisite  formalities  were  not  com- 
plied with.  The  decision  of  the  judge  is  not  final,  but  is  subject 
to  review  in  an  appellate  court,  according  to  local  procedure. 

By  the  rules  of  the  common  law,  the  testamentary  court  has  no 
power  to  determine  the  validity  of  a  will  of  land.  This  is  a  matter 
for  a  court  of  general  jurisdiction,  at  law  or  in  equity,  according 
to  the  nature  of  the  question  involved.  This  rule  still  prevails  in 
New  York.  A  decision  by  the  surrogate,  that  the  will  is  valid, 
considered  as  a  will  of  personal  property,  will  not  be  binding  upon 
the  same  questions  arising  upon  it,  considered  as  a  will  of  real 
estate,  and  the  subject  may  be  litigated  anew  in  the  proper  court, 
without  reference  to  the  surrogate's  decision,  except  so  far  as  stat- 
ute law  may  provide  otherwise.^  This  is  strikingly  shown  by  the 
case  of  Clarke  v.  Sawyer.  The  will  in  that  case  had  been  declared 
valid  as  a  will  of  personal  estate,  by  the  surrogate,  and,  then,  on 
an  appeal  to  the  Chancellor,  the  decision  was  reversed,  and  the 
will  was  declared  void.^  An  independent  suit  was  brought  in 
equity,  on  the  same  testimony  as  had  been  used  before  the  surro- 
gate, to  have  the  will  declared  void  as  to  real  estate.  Coming  be- 
fore the  assistant  Vice  Chancellor  in  the  first  instance,  it  was  held 
to  be  valid,  and  the  suit  was  dismissed. ^  An  appeal  being  taken 
to  the  same  Chancellor,  as  in  the  previous  case,  this  judgment 
was  in  its  turn  reversed,'^  and  the  reversal  was  sustained  by  the 
Court  of  Appeals.'^  {a)    This  anomaly  in  the  law  could  be  removed 

1  Clarke  v.  Sawyer,  2  N.  Y.  498.  *  Clarke  v.  Sawyer,  2  Barb.  Ch.  411. 

2  Clark  V.  Fisher,  1  Paige,  171.  5  2  N.  Y.  498,  supra. 

3  Clarke  v.  Sawyer,  3  Sandf.  Ch.  351. 


(a)  There  is  room  for  argument,  that  the     of  the  decrees  of  surrogates  in  New  York 
rule  stated  in  the  text  respecting  the  effect    where  a  will  of  real  estate  is  sought  to  be 


602 


THE  LAW  OF  PERSONAL  PROPERTY. 


I 


by  establishing  a  probate  court,  with  a  jury,  authorized  to  try 
issues,  both  as  to  real  and  personal  estate,  as  was  done  upon 
the  establishment  of  the  probate  court  in  England.^ 

In  the  early  law,  wills  could  be  proved  in  two  ways ;  either  in 
the  so-called  "  common  form,"  or  in  "  solemn  form."  In  the  first 
case,  there  was  a  merely  formal  proceeding.  The  will  was  un- 
contested, or  parties  interested  were  not  cited.  In  such  cases, 
notwithstanding  a  considerable  lapse  of  time  (in  some  instances 
nine  years  or  more),  the  next  of  kin  might  call  upon  the  executor 
to  prove  it  (in  solemn  form)  by  witnesses,  whose  testimony  they 
might  contest.  This  distinction  appears  to  have  prevailed  in  New 
York  until  the  Revised  Statutes.^  These  provide  a  substitute 
whereby,  even  after  a  will  has  been  regularly  admitted  to  probate, 
the  next  of  kin  of  the  testator  may  at  any  time  within  one  year 
thereafter  file  allegations  against  the  validity  of  the  will  or  the 
competency  of  the  proof.  This  clause  goes  much  further  than  the 
common  law,  for  it  allows  a  rehearing  after  a  contested  will  has 
been  admitted  to  probate,  without  giving  any  reason.  The  con- 
testant has  the  right  to  try  over  again,  upon  the  same  or  upon 
additional  evidence,  the  very  questions  which  were  litigated  on 
the  first  application  for  probate.  The  allegations  must  be  filed 
before  the  year  expires,  and  if  so  filed,  the  citations  may  be  issued 
afterward.^ 


1  20  &  21  Vict.  c.  77,  §§  36,  37,  61  & 
62.  Probate  causes  are  now  determined  by 
the  Probate,  Divorce,  &  Admiralty  Divi- 
sion of  the  High  Court  of  Justice,  which 
was  created  by  the  "  Supreme  Court  of 
Judicature  Act,"  1873  (36  &  37  Vict.  c. 
66).  See,  also,  38  &  39  Vict.  c.  77,  and 
other  amendatory  acts. 


probated,  should  not  be  applied  in  cases 
where  probate  has  been  refused  by  the  sur- 
rogate, as  the  statute,  giving  the  decree 
presumptive  force  merely,  refers  only  to 
cases  where  the  will  has  been  admitted. 
Code  of  Civ.  Pro.  §  2627. 

Since  a  surrogate's  court  has  now,  in  a 
proper  case,  jurisdiction  over  the  probate 
of  wills  of  real  as  well  as  personal  property, 
it  would  seem  that  its  determination  should 
be  conclusive,  when  the  matter  is  prop- 
erly before  the  court,  as  to  both  classes  of 
wills,  except  where  made  otherwise  by 
statute.  Moreover,  the  exception  pre- 
scribed in  §  2627,  applying  as  it  does 
only  when  a  will  is  admitted,  might  be 
explained  as  the  result  of  the  regard  of  the 


2  See  2  R.  S.  60,  §  30  (6th  ed.  Vol.  3, 
p.  61),  repealed  by  Laws  ^of  1880,  ch. 
245. 

3  See  Code  of  Civ.  Pro.  §§  2647-2653, 
for  the  existing  law  ;  Will  of  Gourand,  95 
N.  Y.  256,  260. 


law  for  the  rights  of  the  heir,  as  opposed  to 
the  claims  of  the  devisee.  The  right  of  trial 
bj^  jury  could  be  said  to  be  waived,  bj'  those 
claiming  under  the  will,  in  presenting  it  for 
probate,  in  the  first  instance,  to  the  surro- 
gate's court. 

The  contrary  doctrine  would  seem  to 
render  the  decision  of  the  surrogate,  in  re- 
jecting a  will  of  real  property,  of  no  effect 
whatsoever,  as  the  statute  does  not  make 
such  a  decree  even  prima  facie  evidence 
of  the  matters  passed  upon.  See,  gener- 
ally, Jarman  on  Wills,  3d  ed.  Vol.  L  p. 
35,  n.  Anderson  v.  Anderson,  112  N.  Y. 
104  ;  Bolton  v.  Schriever,  135  N.  Y.  65  ; 
Matter  of  Bortholick.  141  N.  Y.  166. 


TITLE    BY    ACT   OF    THE   LA.W.  603 

VII.  The  construction^  operation,  and  effect  of  a  ivill.  —  Assum- 
ing that  a  will  of  personalty  has  been  properly  proved,  the  next 
inquiry  is  as  to  its  meaning  and  effect.  An  important  distinction 
must  now  be  noticed  between  devises  of  real  estate  and  bequests  of 
personal  property.  The  former  do  not  necessarily  involve  a  trust. 
Whether  there  is  a  trust  or  not  will  depend  upon  the  character  and 
nature  of  the  devise.  In  the  case  of  personal  property  the  title 
vests  in  the  executor,  who  acts  as  a  trustee  for  the  legatees  or 
next  of  kin,  and  creditors.  The  distinction  may  be  shown  by  an 
illustration.  If  a  testator  should  give  his  house  and  lot  directly 
to  A.,  the  latter  would  be  the  legal  owner,  and  could  at  once  exer- 
cise acts  of  ownership,  such  as  enter  into  possession,  or,  if  resisted, 
bring  an  appropriate  action  to  obtain  possession.  On  the  other 
hand,  had  the  same  testator  bequeathed  a  specific  article  of  per- 
sonal property  to  a  legatee,  the  ownership,  as  a  matter  of  law, 
would  remain  in  the  executor,  who  would  be  a  trustee  for  the 
legatee,  and  the  executor  alone  could  bring  a  possessory  ac- 
tion for  the  recovery  of  the  article.  It  is  thus  true  that  the 
law  of  executors  has  no  application  to  real  estate.  Whatever 
control  an  executor  may  have  depends  upon  the  special  lan- 
guage of  the  will,  in  which  case,  if  it  be  sufficient  to  create  a 
trust,  he  acts  as  trustee,  and  not  as  executor.  If  some  power,  not 
amounting  to  a  trust,  be  conferred  upon  him,  his  authority  will 
depend  on  the  law  of  powers. 

For  the  purpose  of  ascertaining  the  meaning  of  the  language 
used  by  testators  in  the  disposition  of  their  estates,  it  is  highly 
expedient  that  there  should  be  a  court  of  general  jurisdiction, 
having  power  to  interpret  wills,  or,  in  technical  language,  "  a 
court  of  construction."  The  advantages  of  such  a  system  are 
that  rules  of  a  general  nature  can  be  formulated  and  applied  to 
the  various  cases  as  they  arise.  This  court,  as  to  all  cases  having 
the  element  of  trust,  is  a  court  of  equity.  Still,  the  great  point 
to  be  regarded  in  construing  a  will  is  the  ascertainment  of  the 
testator's  intention,  and  that  is  often  expressed  in  inartificial  lan- 
guage, while  the  circumstances  of  the  case  are  frequently  special, 
and  not  likely  often  to  recur.  Accordingly,  only  rules  of  a  gen- 
eral nature  can  be  laid  down ;  and  decisions  on  special  facts 
commonly  have  but  little  value  as  precedents. 

It  is  a  convenient  and  well  settled  rule  that  executors  and, 
legatees  may  commence  a  proceeding  before  a  court  of  equity 
simply  to  oljtain  a  construction  of  the  will.     This  rule  could  not 
be  applied  to  a  will  containing  devises  of  real  estate  solely,  un- 
affected by  a  trust.i     It  is  the  presence  of  a  trust  which  gives  the 

1  Post  V.  Hover,  33  N.  Y.  593,  602 ;  Bowers  v.  Smith,  10  Paige,  193. 


gQ4  THE  LAW  OF  PEKSONAL  PROPEKTY. 

court  jurisdiction.  The  executor  or  other  trustee  asks  for  the 
direction  of  the  court  in  the  management  of  the  trust.  On  similar 
o-i-ounds  a  legatee,  or  other  beneficiary,  may  nistitute  a  like  pro- 
ceeding to  have  his  right  or  interest  ascertained,  so  that  he  may 
obtain°such  portions  of  the  estate  as  he  is  entitled  to.i  The 
court,  having  thus  obtained  jurisdiction,  may  dispose  of  the  whole 
controversy,  even  though  the  element  of  trust  does  not  extend 
through  all  the  provisions  of  the  will.^  A  devisee  who  claims  a 
mere  legal  estate  cannot  maintain  an  action  for  the  construction 
of  a  will,  but  must  resort  to  strictly  legal  remedies.^  It  has  been 
held  that  such  an  action  cannot  be  maintained  if  the  will  is  clear. 
There  must  be  some  doubt  as  between  the  executor  and  some 
person  interested  in  the  provisions  of  the  will.* 

Jurisdiction  to  construe  the  will  to  a  certain  extent  is  conferred 
by  statute  in  New  York  upon  the  surrogate.  It  is,  however,  con- 
fined to  personal  property .^  Another  statute,  in  New  York,^  pro- 
vides that  the  validity,  construction,  or  effect  of  a  testamentary 
disposition  of  real  property,  situated  within  the  State,  may  be  de- 
termined in  an  action  brought  for  that  purpose,  etc.  This  statute 
was  recently  applied  to  the  inquiry  whether  a  power  created  in 
one  will  had  been  duly  executed  by  the  donee  in  his  will."  (a) 

Some  general  rules  of  construction  should  now  be  considered.  It 
is  a  general  principle  that  the  construction  of  a  will  of  personal 
property  depends  upon  rules  prevailing  in  the  law  of  the  testator's 
domicile  at  the  time  of  his  death.  This  is  but  a  rule  of  interpre- 
tation, designed  to  ascertain  the  testator's  meaning,  and  may  give 
way  when  there  are  sufficient  grounds  for  believing  that  his  inten- 
tion was  to  use  the  words  in  a  different  sense  from  that  prevailing 
in  his  domicile.  Accordingly,  if  he  use  technical  words,  having  a 
definite  meaning  in  the  law  of  his  domicile,  it  will  be  presumed  that 
he  used  them  in  that  sense.  A  similar  view  would  be  taken  of  words 
of  weight,  measure,  etc.     This  principle  would  give  way  in  case  he 

1  Wager  v.  Wager,  89  N.  Y.  161.  The  suh  nom.  Horton  v.  Cautwell,  108  N.  Y. 
law  on    this    point    is   clearly   and    ably     255. 

stated  in   the  opinion  in  this  case.     See  ^  Code  of  Civ.  Pro.  §  2624.    The  limits 

also  Greyston  ■!;.  Clark,  41  Hun,  125.  of  this  jurisdiction  were  considered  in  Jones 

2  Wager  v.  Wager,  supra,  p.  168.  v.  Hamersley,  4  Dem.  427. 

3  Weed  V.  Weed,  94  N.  Y.  243.  6  Code  of  Civ.  Pro.  §  1866,  taken  from 
*  Weed  V.  Cantwell,  36  Hun,  528;  afFd,     Laws  of  1853,  ch.  238. 

^  Drake  v.  Drake,  41  Hun,  366. 


(a)  The  question  of  the  validity  of  a  Mellen  v.  Mellen,  139  N.  Y.  210.     This 

power  of  sale  in  a  will  does  not  affect  the  statute  does  not  refer  to  the  validity  of 

"  testamentary  disposition  "  made  by  the  the  will  making  the  disposition,  but  simply 

testator   of  his  lands,  so  as  to  authorize  to  the  validity  of  the  disposition  so  made, 

an  action  for  the  construction  of  the  will.  Anderson  v.  Anderson,  112  N.  Y.  104. 


TITLE   BY    ACT   OF   THE   LAW.  605 

used  foreign  legal  terms  prevailing  in  the  country  where  he  lived, 
or  where  the  will  was  made,  or  was  to  be  carried  into  effect,  though 
not  the  country  of  his  domicile.  The  presumption  that  he  intended 
to  adopt  the  sense  prevailing  in  his  domicile  might  then  be  rebutted. 
The  fact  that  he  used  a  foreign  language  would  not  be  controlling. 
Thus,  a  native  of  Norway,  domiciled  in  an  American  State,  might 
write  his  will  in  the  Norwegian  language,  without  any  thought  of 
following  Norwegian  law ;  or  an  inhabitant  of  Lower  Canada  might 
use  the  English  language  without  any  intent  to  follow  the  English 
law.^  But  if  a  testator,  domiciled  in  one  country,  make  a  will 
•expressed  in  the  technical  terms  of  the  law  of  a  foreign  country, 
so  as  to  manifest  an  intention  that  it  should  operate  according  to 
that  law,  effect  must  be  given,  even  in  the  courts  of  the  domicile, 
to  the  meaning  as  found  in  the  foreign  law.^ 

In  English  and  American  law  the  great  point  is  to  ascertain 
the  intention  of  the  testator.  This  must  be  gathered  from  the 
instrument  itself.  In  construing  it,  certain  subordinate  rules 
must  be  followed. 

Rule  1.  The  courts  resort  to  established  rules,  under  which  par- 
ticular words  standing  by  themselves  have  acquired  a  definite 
meaning,  or,  in  other  words,  a  legal  signification,  which  the 
draughtsman  of  the  will  is  presumed  to  know.  This  meaning  has 
been  for  the  most  part  ascertained  by  decision.  Unless  this  mean- 
ing were  followed,  the  meaning  of  the  testator  would  be  a  matter 
of  conjecture.  The  "  intention  "  of  the  testator  for  which  the 
court  is  seeking,  is  in  general  presumed  to  be  found  in  prior  legal 
decisions  interpreting  the  words  used.  There  will  be  room  for  un- 
certainty where  the  meaning  of  the  words  has  not  yet  been  fixed 
by  decision,  or  where  the  decisions,  instead  of  being  uniform,  are 
conflicting. 

Rule  2.  The  intention  of  the  testator  being  the  point  to  be 
regarded,  the  rule  of  construction  must  be  the  same  in  law  as 
in  equity. 

Rule  3.  Technical  words  are  not  necessary.  Popular  words 
may  be  adopted.  It  is,  however,  highly  expedient  to  use  words 
whose  meaning  has  been  settled  by  authoritative  decisions.  When 
technical  words  are  used,  they  are  presumed  to  be  employed  in 
their  legal  sense,  unless  the  context  indicates  the  contrary.^ 

1  McGibbon  v.  Abbott,  L.  R.  10  App.  ^  Lqj.^  Chancellor  Selborne,  in  a  re- 
Cas.  653  ;  explaining  Martin  v.  Lee,  14  cent  case,  declares  the  qualification  of  this 
Moore,  P.  C.  C.  142.  rule  as  to  the  "  context  showing  the  con- 

2  Bradford  v.  Young,  L.  R.  26  Ch.  D.  trary  "  to  be  a  perilous  and  hazardous  argu- 
€56,  discussing  Studd  v.  Cook,  L.  R.  8  ment  in  most  cases  where  it  is  used, — an 
App.  Cas.  577.  See  Dicey  on  Domicil,  argument  which  seeks  to  escape  from  the 
pp.  306,  307,  308.  necessity  of  grappling  with  the  meaning  of 


506  THE  LAW  OF  PERSONAL  PROPERTY. 

Rule  4.  Wills  of  personal  property  for  most  purposes  speak, 
not  from  the  execution  of  the  will,  but  from  the  death  of  the 
testator.  This  rule  does  not  apply  to  words  descriptive  of  persons 
or  things  existing  when  the  will  was  made.  The  expression  "  my 
son  now  living,"  or  "  stock  now  standing,  inscribed  in  my  name," 
would  be  confined  to  a  son  living  or  to  stock  owned  when  the  will 
was  executed. 1  This  rule  affects  specific  legacies,  to  be  hereafter 
considered. 

Rule  5.  All  the  parts  of  the  will  are  to  be  construed  together, 
so  as,  if  possible,  to  form  a  consistent  whole.  If  there  are  irre- 
concilable expressions,  the  later  ones  usually  prevail. 

Rule  G.  Words  are  in  general  to  be  taken  in  their  ordinary 
and  grammatical  sense,  unless  there  can  be  ascertained  a  clear  sig- 
nification to  the  contrary.  If  the  same  words  are  used  more  than 
once  as  applicable  to  the  same  subject,  they  will  be  presumed  to 
be  used  in  the  same  sense,  unless  there  be  something  in  the  con- 
text to  show  the  contrary. 

Rule  7.  Where  the  language  is  plain,  the  inconvenience  or 
absurdity  of  the  provision  supplies  no  ground  for  varying  the 
construction.  On  the  other  hand,  where  the  language  is  obscure, 
such  considerations  will  be  taken  into  account. 

There  is  a  considerable  number  of  subordinate  rules  designed 
to  rectify  mistakes  and  errors  to  a  limited  extent,  to  explain  ambi- 
guities, to  reconcile  contradictions,  to  remedy  defects  of  arrange- 
ment, and  the  like,  so  far  as  to  aid  the  intention  of  the  testator, 
but  never  to  subvert  or  overthrow  it.  These  may  be  classified 
as  sub-rules. 

Sub-rule  1.  Extrinsic  (sometimes  called  parol)  evidence  is  ad- 
missible to  remove  an  ambiguity,  or,  in  other  words,  to  show,  where 
the  words  are  capable  of  two  or  more  applications,  which  of  them 
was  intended.  At  one  time  this  rule  was  confined  to  latent  ambi- 
guities, —  that  is,  to  such  as  did  not  appear  on  the  will,  but  were 
disclosed  by  external  evidence.  This  distinction  is  now  discarded, 
and  any  ambiguity,  whether  latent  or  appearing  on  the  face  of  the 
will,  can  be  removed  by  extrinsic  evidence.  For  example,  should 
the  testator  give  a  legacy  to  "  George  Gord,"  it  would  be  equally 
explainable,  whether  the  will  itself  disclosed  that  there  were  two 
persons  of  that  name,  or  it  was  shown  by  extrinsic  evidence.^ 

Sub-rule  2.   Extrinsic  evidence  cannot  be  used  to  remove  an 

particular  words  upon  grammatical  princi-  i  Jarman  on  "Wills,  Ch.  10. 

pies,  and  endeavors  to  get  into  a  region  of  2  -Qq^  y_  Needs,  2  M.  &  W.  129.     The 

speculation   as  to  the   probable  intent  of  subject  is  considered  most  satisfactorily  in 

the  testator.     Giles  v.  Melsom,   L.  R.  6  this  case. 

Eng.  &  Ir.,  App.  Cas.  24,  31. 


TITLE    BY    ACT    OF    THE    LAW.  607 

uncertainty  as  distinguished  from  an  ambiguity.  For  example, 
it  cannot  be  used  to  fill  a  blank  space  with  the  name  of  a  legatee 
nor  with  the  property  assumed  to  be  intended.  Nor  could  it  be 
shown  what  individual  member  of  a  class  of  persons  was  intended, 
where  the  testator,  in  referring  to  the  class,  had  not  sufficiently 
identified  the  individual.  Thus,  a  legacy  to  the  "  most  worthy 
inhabitant"  of  a  specified  village,  would  present  a  case  of  incura^ 
ble  uncertainty. 

Sub-rule  3.  An  error  in  description  does  not  necessarily  vitiate 
a  legacy.  There  is  a  well-known  maxim,  — falsa  demonstratio  non 
nocet.  This  means  that  where  there  is  a  sufficient  description 
of  the  person  or  thing  intended,  an  erroneous  addition  will  not 
vitiate  it.^ 

As  applied  to  a  will,  this  means  that,  if  a  description  be  false 
in  part,  yet  if  there  be  existing  circumstances  ahsolidely  identify- 
ing the  subject  intended,  the  clause  is  valid.  The  test  of  the 
maxim  is,  that  the  description  so  far  as  it  is  false,  applies  to  no 
subject,  and  so  far  as  it  is  true,  it  applies  to  one  only.  This  doc- 
trine cannot  be  pressed  so  far  as  to  allow  by  oral  evidence  a  dif- 
ferent legacy  to  be  substituted  in  the  place  of  one  which,  through 
mistake,  could  not  take  effect,  but  only  to  correct  the  mistake,  and 
then,  after  correction,  carry  the  will  into  effect,  if  enough  remains 
to  indicate  the  testator's  intention.^ 

Sub-rule  4.  Words  and  clauses  may  be  transposed,  supplied,  or 
rejected,  where  transposition  or  rejection  is  warranted  by  the  con- 
text or  general  scheme  of  the  will.  This  rule  is  not  to  be  pressed 
to  the  extent  of  supplying  by  conjecture  a  sense  which  is  in  oppo- 
sition to  the  plain  and  obvious  meaning  of  the  language  used,  no 
matter  how  reasonable  that  sense  may  be.  The  great  object  of 
interpretation  is  to  find  out  the  meaning  of  the  testator,  even 
though  that  may  turn  out  to  be  unreasonable  or  silly ;  and  when 
his  meaning  is  plain,  it  must  be  followed  at  whatever  cost  to  the 
will.  So,  too,  words  obviously  miswritten  may  be  corrected,  as 
"  with  "  for  "  without,"  and  "  or  "  for  "  and,"  or  vice  versa. 

1  Doe  V.  Hubbard,  15  Q.  B.  227,  241.  to  show  how  the  mistake  arose,  and  thus 

2  The  correct  principle  is  shown  in  the  give  the  legatee  £1,250  out  of  the  testa- 
case  of  Selwood  V.  Mildmay,  3  Ves.  306.  tor's  general  estate.  This  ease,  from  mis- 
In  that  case  a  testator  bequeathed  the  apprehension  of  its  real  scope,  has  some- 
proceeds  of  £1,250,  "part  of  his  stock  in  times  received  adverse  criticism,  as  in 
the  four  per  cent,  annuities  of  the  Bank  of  Miller  v.  Travers,  8  Bing.  244,  and  Doe  v. 
England."  He  had  no  annuities  of  this  Hiscocks,  5  M.  &  W.  363.  The  theory  of 
class  when  the  will  was  made,  though  he  the  decision  was  carefully  and  correctly 
had  formerly  owned  some,  which  had,  how-  stated  by  Lord  Langdale,  M.  R.,  in 
ever,  been  sold,  and  the  proceeds  converted  Lindgren  v.  Lindgren,  9  Beav.  358,  and 
into  "long  annuities."  Evidence  of  these  followed  by  him  in  a  case  presenting  simi- 
facts  was  received,  not  to  show  that  he  in-  lar  facts. 

tended  to  give  the  "long  annuities,"  but 


QQQ  THE  LAW  OF  PERSONAL  PROPERTY. 

Sub-rule  5.  The  court  will  regard  the  circumstances  under 
which  the  will  was  made, —  such  as  the  state  of  the  testator's 
property,  or  of  his  family,  or,  if  material,  of  his  friendships  or 
acquaintanceships,  with  the  view  of  placing  itself  as  nearly  as 
possible  in  the  situation  of  the  testator.  This  is  not  with  the 
view  of  altering  the  will,  but  to  place  itself  in  the  right  posi- 
tion to  understand  his  meaning.  With  all  the  light  thus  obtained, 
the  testator's  intention  must  be  gathered  from  the  will,  and  from 
that  alone. 

Sub-rule  6.  A  testator  must  be  presumed  to  have  calculated 
on  his  will  taking  effect  rather  than  the  contrary,  and  to  have 
intended  to  dispose  of  his  whole  estate.  The  burden  of  proof  is 
accordingly  upon  one  who  alleges  the  contrary. 

Sub-rule  7.  If  the  intention  cannot  operate  to  its  full  extent, 
it  should  operate  as  nearly  as  possible.  This  leads  to  the  doc- 
trine of  cij  pres,'^  —  meaning  the  rule  of  approximating  the  intent, 
or  getting  as  near  to  it  as  the  rules  of  law  will  permit.  It  is 
peculiarly  applicable  to  wills  of  real  estate.  Still,  as  wills  of  land 
and  personal  property  are  brought  nearer  together  than  formerly, 
there  appears  to  be  no  good  reason  for  excluding  it,  wherever  it 
can  reasonably  be  applied.  It  is  resorted  to  frequently  in  the 
€ase  of  gifts  to  charitable  uses. 

Further  and  more  detailed  rules  of  interpretation  will  be  found 
in  treatises  upon  wills  and  upon  construction  and  interpretation. 

VIII.  Legacies.  —  The  general  name  given  to  a  disposition  of 
personal  property  in  a  will  is  a  legacy. 

(1)  Kinds  of  legacies.  —  Legacies  may  be  generally  classified 
as  specific,  demonstrative,  and  general. 

1.  Specific  legacies.  There  has  been  much  difference  of  opin- 
ion as  to  the  true  definition  of  a  specific  legacy.  The  correct  view 
seems  to  be  that  it  includes  items,  or  a  class  of  items,  belonging 
to  the  testator,  so  described  in  the  will  as  to  be  distinguished  from 
all  other  items  of  property.  It  is  not  enough  that  the  testator 
owns  an  article  which  answers  the  designation.  Thus,  a  legacy  of 
a  gold  watch  would  not  be  specific,  even  though  the  testator  owned 
one,  nor  of  ten  shares  in  a  designated  bank,  though  he  owned 
precisely  ten  shares.  But  if  the  words,  the  "  gold  watch  I  now 
wear,"  or  "  ten  shares  of  stock  now  registered  in  my  name,"  were 
nsed,  the  description  would  be  so  closely  drawn  as  to  exclude  all 
others,  and  so  make  the  gift  specific.  In  other  words,  the  test  of 
a  specific  legacy  is  the  language  of  the  testator,  and  not  the  ex- 
trinsic fact  that  he  owned,  when  the  will  was  executed,  a  chattel 
which  in  its  nature  corresponded  to  the  thing  bequeathed. 

^  The  words  cy  pres  mean  "as  near."   It  is  accordingly  an  elliptical  expression. 


TITLE    BY    ACT    OF   THE    LAW.  609 

Lord  Chancellor  Selborne,  acting  as  a  jnclge  in  the  House  of 
Lords,  has  framed  two  definitions  of  a  specific  legacy.  One  is  as 
follows.  It  is  a  bequest  by  a  description  which  identifies  a  par- 
ticular subject  then  existing  as  intended  to  pass  to  the  donee  in 
specie.^  In  a  later  case  his  definition  is,  something  "  which  a  tes- 
tator, identifying  it  by  a  sufficient  description,  and  manifesting  an 
intention  that  it  should  be  enjoyed  or  taken  in  the  state  and  condi- 
tion indicated  by  that  description,  separates  in  favor  of  a  particu- 
lar legatee  from  the  general  mass  of  his  personal  estate."  ^  This 
definition  was  approved  by  Lords  Blackburn  and  Fitzgerald.-^ 
Yet  it  seems  doubtful  whether  the  words,  "to  be  enjoyed  in 
the  state  and  condition  indicated,"  etc.,  are  really  a  proper  term 
in  the  definition.  Suppose  that  the  testator  should  bequeath 
one  hundred  shares  of  stock  specifically  described,  and  add  the 
words,  "  if  sold  before  my  death,  then  the  proceeds,"  would 
the  last  words  deprive  the  bequest  of  its  specific  character  ?  It 
would  seem  not."^  The  great  feature  of  a  specific  bequest  is,  that 
a  particular  thing  then  owned  by  the  testator  is  suflficiently  de- 
scribed or  identified  as  the  subject  of  his  gift.  A  good  illustration 
is  such  words  as  "  all  mi/  stock  in  the  Midland  Railway  Com- 
pany,"^ or,  "  ?n?/  books  and  paintings.^  (a) 

The  case  of  Tifft  v.  Poi-ter  is  important.'^  The  testator  owned 
360  shares  of  the  stock  of  a  bank.  He  bequeathed  simply  240 
shares  of  stock  in  the  bank  to  A.,  and  120  shares  to  B.,  without 
any  description  showing  that  they  were  the  shares  then  belonging 
to  him.     The  legacy  was  held  to  be  general  and  not  specific. 

A  mere  exemption  by  way  of  legacy  of  particular  items  from 
the  general  mass  of  the  testator's  estate  does  not  make  the  be- 
quest of  the  rest  of  his  property  to  another  person  specific.  Thus, 
if  he  should  bequeath  to  A.  all  the  personal  estate  of  which  he 
should  die  possessed  not  consistiyig  of  money  or  securities  for 
money,  and  give  to  B.  what  he  had  not  bequeathed  to  A.,  the 
legacy  to  the  latter  would  not  be  specific.^  Specific  words  fol- 
lowing general  expressions  will  sometimes  be  regarded  as  simply 

1  Giles  V.  Melsom,  L.  R.  6  Eng.  &  Jr.  6  Langdalev.  Esmonde,  4  Ir.  R.Eq.  576. 
App.   Cas.   24,    29   (1873).  i  8  N.  Y.  516.     To  the  same  effect,  see 

2  Robertson  v.  Broadbent,  L.  R.  8  App.  Bronsdon  v.  Winter,  Ambler,  57;  Wilson 
Cas.  812,  815  (1883).  v.  Brownsmith,   9  Ves.  180  ;   Johnson  v. 

8  Id.  820,  821.  Goss,  128  Mass.  433.     Compare  with  Met- 

*  See  Palin  v.  Brookes,  26  W.  R.  877.  calf  v.  Framingham  Parish,  Id.  370. 
5  Bothamley  v.  Sherson,   L.  R.  20  Eq.  «  Broadbent  v.  Barrow,  L.  R.  20  Ch. 

304.  D.  676  (C.  A.). 

(a)  Hood  V.  Haden,  82  Va.  588  ;  Hayes     145  Mass.  346  ;  Harvard  Unitarian  Society 
V.  Hayes,  45  N.  J.   Eq.  461  ;    Maybury  v.     v.  Tufts,  151  Mass.  76. 
Grady,   67  Ala.  147;    Tomlinson  v.  Bury, 

39 


QIQ  THE  LAW  OF  PERSONAL  PROPERTY. 

explanatory  or  confirmatory  of  the  general  words,  and  in  such  a 
case  the  legacy  will  not  be  specific.i  ^  specific  legacy  is  defined 
by  high  authority  to  be  "  a  bequest  of  a  specified  part  of  the  tes- 
tator's personal  estate  which  is  so  distinguished."  ^  This  definition 
was  followed  by  one  of  the  judges  in  Broadbent  v.  Barrow,,  cited  in 
the  note,  though  declared  not  to  be  exhaustive.^ 

2.  Demonstrative  legacies.  By  tiie  term  "demonstrative"  is 
meant  a  designation  of  a  particular  fund  from  which  the  legacy  is 
directed  to  be  paid  in  such  a  way  that  if  the  fund  should  fail  or 
be  insufficient  the  legacy  would  still  be  payable,  either  in  whole 
or  in  part,  from  the  testator's  general  estate. 

A  testatrix  directed  a  number  of  legacies  to  be  paid  from  a  fund 
of  c£ 6,000  which  she  assumed  to  belong  to  her.  It  turned  out 
that  she  had  only  a  life  interest  in  the  fund.  The  legacy  was 
declared  to  be  demonstrative ^  In  other  words,  the  testatrix  had 
pointed  out  a  fund  from  which  the  legacy  was  to  be  paid,  but  did 
not  limit  the  legatee  to  that  fund.^  The  legacy  must  accordingly 
be  paid  from  the  general  estate  of  the  testatrix,  {a) 

Accordingly,  a  pecuniary  legacy  given  with  a  particular  security 
is  demonstrative.^  And  wherever  there  is  a  fixed,  independent, 
separate,  and  distinct  intent  to  give  the  legacy,  it  will  stand, 
though  the  fund  out  of  which  it  is  directed  to  be  paid  does  not 
exist.''  Thus,  where  a  testator  bequeathed  certain  annuities,  and 
directed  that  they  should  be  paid  out  of  the  rents  of  his  real  es- 
tate, and  the  latter  proved  to  be  insufficient,  it  was  held  that  the 
gift  was  demonstrative,  and  the  deficiency  must  be  paid  out  of 
the  capital  of  the  residuary  personal  estate.^  If,  however,  the 
words  are  positive  that  the  legacy  must  be  taken  from  a  desig- 
nated fund,  then  the  legacy  is  not  "  demonstrative,"  but  must  be 
confined  to  the  fund  so  designated.^ 

Some  of  the  leading  practical  distinctions  between  specific  and 
demonstrative  legacies  should  be  noted.  A  specific  legacy  is  not 
liable  to  "  abate "  in  respect  to  other  classes  of  legacies,  a  de- 
monstrative one  is.     A  specific  legacy  is  liable  to  "ademption,"  a 

1  Fairer  v.  Park,  L.  R.  3  Ch.  D.  309.  6  See  Willox  v.  Rhodes,  2  Russ.  452  ; 

2  Williams  on  Executors  (8th  Eng.  Colville  v.  Middletoti,  3  Beav.  570  ;  Camp- 
ed.), 1163.  bell  V.  Graham,  1  Russ.  &  M.  453. 

s  Per  LiNDLEY,  L.  J.,  p.  684.  ^  Mann  v.  Copland,  2  Madd.  223. 

*  Cunliffe  v.  Cuuliffe,  23  W.  R.  724.  «  Paget   v.    Hurst,   9  Jur.    N.  s.    906  ; 

5  Fowler  v.  Willoughb}^,  4  L.  J.  (Ch.)  Williams  v.  Hughes,  24  Beav.  474. 
72,  s.  c.  2  Sim.  &  S.  354.  9  Coard  v.  Holderness,  22  Beav.  391. 


{a)  See  generally  as  to  demonstrative  Armstrong's  Appeal,  63  Pa.  St.  312  ;  Ives 

legacies,    Giddings  v.  Seward,  16   N.  Y.  v.   Canhy,   48    Fed.    R.    718  ;    Additon  v. 

365  ;    Pierrepont    v.   Edwards,  25  N.  Y.  Smith,  83  Me.  551 ;  Hutchinson  v.  Fuller, 

128  ;  Delaney  v.  Van  Aulen,  84  N.  Y.  16  ;  75  Ga.  88. 


TITLE    BY   ACT    OF   THE    LAW.  611 

demonstrative  one  is  not.  A  specific  legacy  vests  immediately  on 
the  death  of  the  testator,  a  demonstrative  one  does  not.^  The 
topics  of  "  abatement "  and  "  ademption "  will  be  hereafter 
considered.^ 

3.  General  legacies.  This  expression  includes  all  legacies 
given  in  money  simply,  without  any  direction  as  to  the  fund  from 
which  payment  is  to  be  made,  or  in  goods  without  definite  descrip- 
tion. Thus,  a  legacy  of  a  gold  watch  is  a  general  legacy,  as  well  as 
one  of  a  thousand  dollars.  A  legacy  of  stock  (government  bonds) 
will  accordingly  be  specific  or  general  according  to  the  circumstance 
whether  the  testator  intended  to  confine  it  to  stock  that  he  then 
had.^  Accordingly,  a  legacy  of  all  the  stock  that  the  testator  may 
be  possessed  of  at  the  time  of  his  decease  is  not  specific  but 
general.*  In  an  English  case  a  testator  bequeathed  as  follows : 
"c£l,500  of  my  Egyptian  9  per  cent,  bonds  to  A.,"  and,  again, 
"  X500  Egyptian  9  per  cent,  bonds  to  B."  The  bequest  to  A.  was 
declared  to  be  specific,  and  that  to  B.,  general,^  and  this  even 
though  the  testator  had  such  last-mentioned  bonds  at  the  time.^ 

One  further  distinction  must  now  be  noticed.  This  concerns  a 
"  residuary  legacy."  It  is  not  uncommon  for  a  testator,  after 
naming  certain  legacies  of  a  specific,  demonstrative,  or  general 
nature,  to  add  a  clause  to  the  effect  that  all  the  rest  and  residue 
of  his  personal  property,  or,  it  may  be,  both  real  and  personal, 
shall  go  to  specified  persons.  As  to  the  personal  property,  the 
beneficiary  is  termed  a  "residuary  legatee,"  and  as  to  the  real 
property,  "  a  residuary  devisee."  A  provision  in  a  will  for  a  resi- 
duary legacy^  in  its  broadest  meaning,  is  a  species  of  omnibus 
clause,  designed  to  sweep  in  everything  that  has  not  been  other- 
where effectually  disposed  of.'^ 

There  may,  however,  be  a  "  residue  "  of  a  portion  of  an  estate, 
as  well  as  a  general  residue  covering  the  entire  estate.  Again,  a 
clause  framed  in  residuary  terms  may  be  a  specific  legacy.  Such 
words  as  the  following,  "  all  my  personal  estate  in  Jamaica  to  be 
remitted  to  England,"  ^  "  all  my  personal  estate  at  W.,"  9  or,  "  all 
other  of  my  personal  estate  and  effects  which  I  can  by  law  be- 
queath to  such  an  institution,"  ^^  ^re  examples.  So  where  in  a 
residuary  clause  specific  property  is  named,  the  bequest  may  be 

1  MuUins  V.  Smith,  1  Dr.  &  Sm.  204  ;  6  See  Tifft  v.  Porter,  8  N.  Y.  516 ; 
Kirby  v.  Potter,  4  Ves.  748.                              Johnson  v.  Goss,   128  Mass.  433. 

2  Seeposi!,  pp.  619-623.  7  Taylor  v.  Taylor,  6  Sim.  246. 

3  Avelyn  v.  Ward,  1  Ves.  Sr.  419,  425.  8  Nisbett  v.  Murray,  5  Ves.  149. 
*  Parrott  v.  W^orsfold,  1  Jac.  &  W.  594.          9  Sayer  v.  Sayer,  2  Vem.  688. 

But  see  Stephenson  v.  Dowson,  3  Beav.         lo  Shepheard  v.  Beetham,  L.  R.  6  Ch. 
342,  where  the  contrary  is  held.  D.  597. 

5  Macdonald  v.  Irvine,  L.  R.  8  Ch.  D. 
101  (C.A.). 


512  THE  LAW  OF  PERSONAL  PKOPERTY. 

specific  as  to  that  particular  property,  and  general  as  to  the  rest.^ 
It  is,  however,  a  rule  that  where  a  testator  uses  general  words, 
such  as  "  all  my  property,"  or  "  all  that  I  have  power  over,"  and 
then  i)roceeds  to  mention  particular  things,  this  enumeration  does 
nut  change  the  effect  of  the  general  words,  nor  make  the  enumer- 
ated gifts  specific.^  A  partial  residue  carved  out  of  a  general 
one  is  not  necessarily  specific.^ 

A  distinction  must  here  be  mentioned,  applicalilc  to  legacies 
in  creneral,  between  such  as  are  cumulative  and  such  as  are 
substitutionary.  It  sometimes  happens  that  legacies  of  the  same 
amount  are  given  to  the  same  person,  either  in  the  same  instru- 
ment, or  different  instruments.  The  question  then  arises,  whether 
the  legatee  is  to  have  both,  or  only  one.  If  he  is  entitled  to  both, 
the  legacies  are  called  cumulative.  If  only  one,  it  may  be  because 
it  is  treated  as  a  case  of  inadvertent  repetition.  In  this  case,  the 
later  legacy  is  called  repetitious.  It  may  be  that  the  testator 
intended  to  put  the  later  legacy  in  place  of  the  former.  It  is  then 
called  substitutionary. 

The  following  rules  prevail  in  determining  whether  legacies  are 
cumulative. 

Rule  1.  When  two  legacies  are  given  in  the  same  instrument, 
of  the  same  amount,  to  the  same  person,  the  presumption  is  that 
only  one  was  intended.*  It  is,  however,  a  matter  of  intention,  and 
the  presumption  may  be  rebutted  by  evidence  to  the  contrary. 

Rule  2.  When  the  legacies  are  found  in  different  instruments 
(excluding  the  case  of  two  codicils),  without  any  qualification  or 
statement  of  motive,  the  legacies  are,  in  general,  cumulative,  and 
the  legatee  is  entitled  to  both,^  It  is  not  material  whether  the 
amounts  be  the  same,  or  different,^ 

Rule  3.  The  construction  adopted  in  Rule  2  may  be  repelled  by 
internal  evidence  to  the  contrary,  as  where  the  same  sum  is  given 
for  the  same  cause."  Simple  repetition,  if  exact,  may  be  enough 
to  repel  the  presumption.^  The  circumstances  of  the  whole  case 
must  be  regarded,^ 

Rule  4.  In  determining  whether  legacies  are  cumulative  or  sub- 
stitutionary, the  object  will  be  to  ascertain  the  testator's  intention, 
which  in  many  cases  can  only  be  done  by  a  close  and  critical 
examination  of  the  different  instruments,^'^ 

1  Mills  V.  Brown,  21  Beav.  1.  6  Hurst  v.  Beach,  5  Madd.  351,58. 

-  King  V.  George,  L.  R.  5  Ch.  D.  627  '^  Osborne  v.  Duke  of  Leeds,  5  Ves.  369, 

(C.  A.).  382  ;  Benyon  v.  Benyon,  17  Ves.  34. 

3  Robertson  v.  Broadbent,  L.  R.  8  App.  »  Moggridge  v.  Tliackwell,  1  Ves.  464, 

Cas.  812.  9  Lyon  v.  Colville,  1  Colly.  449. 

*  Garth  v.  Meyrick,  1  Bro.  C.  C.  30.  ^  Guy  v.  Sharp,  1  M.  &  K.  589  ;  Hem- 

6  Baillie  v.  Butterfield,  1  Cox  Eq.  392.  ming  v.  Gurrey,  1  Dow  &  CI.  35, 


TITLE    BY   ACT   OF   THE    LAW.  613 

Rule  5.  Where  there  are  several  gifts  to  a  stranger,  by  different 
instruments,  the  presumption  is  that  the  gifts  are  cumulative. 
The  presumption  will  be  strengtliened  bv  a  difference  of  motive  in 
the  two  cases,  or  weakened  or  overcome  by  the  statement  by  the 
testator  of  the  same  motive.^  The  question  is  thus  made  to 
depend  upon  circumstances.^ 

Rule  6.  As  between  a  first  and  second  codicil,  the  court  is  not 
inclined  to  regard  them  as  separate  instriunents  for  the  purpose 
of  making  the  legacies  cumulative.^ 

Rule  7.  A  special  question  has  arisen  in  separate  legacies  to 
servants.  This  is  whether  the  word  "  servant "  expresses  a 
motive,  or  is  simply  descriptive,  and  used  to  identify  the  person. 
In  the  former  aspect  it  will  be  regarded  as  repetitious  ;  in  the 
latter,  as  cumulative.^ 

(2)  Ownership  or  right  of  the  legatee.  —  From  this  point  of 
view,  legacies  are  either  vested  or  contingent,  and  absolute  or 
conditional.     Again,  ownership  may  be  qualified  or  general. 

Vested  and  contingent  legacies.  —  A  legacy  is  said  to  be  "  vested  " 
when  the  ownership  is  fixed  in  a  particular  person.  A  distinction 
must  be  taken  between  ownership  and  possession.  A  legatee 
may  own  a  chattel,  and  yet  not  be  entitled  to  immediate  posses- 
sion. His  interest  would  still  be  deemed  to  be  vested.  An  im- 
portant class  of  cases  is  that  where  money  is  to  be  paid  to  a 
legatee  on  attaining  a  specified  age,  —  e.  g.,  twenty-one.  Should  he 
die  before  twenty-one,  the  legacy  would  in  general  belong  to  him, 
and  so  be  transmitted  by  succession  to  his  representatives,  (a) 
If  the  words  indicate  that  the  money  is  to  belong  to  him  if  he 
attains  twenty-one,  the  legacy  is  contingent,  and  if  he  dies  before 
that  age,  nothing  vests,  the  money  simply  remaining  a  part  of 
the  testator's  estate.  If  the  income  is  directed  to  be  applied  to 
the  support  of  the  legatee  until  he  attains  twenty-one.  and  then  the 
principal  is  to  be  paid  over  to  him,  and,  in  case  he  dies  under  that 
age,  to  another,  the  legacy  is  deemed  to  be  vested  at  the  moment 
of  the  testator's  death,  though  liable  to  be  divested  by  the  death  of 
the  beneficiary  before  the  prescribed  time.  He  would  thus  own 
the  entire  income  during  his  life,  though  he  died  under  the  speci- 
fied age.-^ 

1  Suisse  V.  Lowther,  2  Hare,  424.  *  Roch  v.  Callen,  6  Hare,  531 ;  TVilson 

'  Eussell   V.   Dickson,  4  H.  of  L.  Cas.  v.  OXeary,  L.  R.  7  Ch.  App.  448. 

293  :  Tuckey  v.  Henderson,  33  Bear.  174.  =  In  re  Peek's  Trusts,  L.  R.  16  Eq.  221  ; 

3  Tatham  v.  Drummond,  10  Jur.  x.  s.  Bolding  v.  Strugnell,  45  L.  J.  (Ch.)  208. 

557. 

(a)  Warner  v.  Durant,  76  X.  Y.  133  ;     of  Mahan,  9S  Id.  372  ;  Goebel  v.  Wolf,  113 
Smith  r.  Edwards,  SS  Id.  92 ;  Bushnell  v.     Id.  405. 
Carpenter,  92  Id.  270  ;  Matter  of  Accounts 


ei4  THE  LAW  OF  PERSONAL  PEOPERTY. 

A  different  rule  is  applied  where  the  legacy  is  made  a  charge 
upon  the  testator's  land.  In  that  case,  if  the  money  is  to  he  j^aid 
on  the  attainment  of  a  specified  age,  and  the  beneficiary  dies  before 
that  age,  the  legacy  fails.  It  is  said  to  lapse.  The  reason  of  the 
distinction  is,  that  the  charge  is  prejudicial  to  the  testator's  heirs, 
and  the  rules  of  law  favor  those  who  claim  the  real  estate  by 
succession.  The  word  "  vested,"  when  used  in  respect  to  owner- 
ship, may  mean  either  the  vesting  of  a  defeasible  interest,  or  of 
one  that  is  absolute  and  indefeasible.  The  context  may  be 
resorted  to  in  order  to  show  what  is  intended.^  Only  general 
rules  can  be  stated  in  this  connection.  A  great  number  of 
decisions  turn  upon  the  special  words  used  by  the  testator,  and 
are  to  be  found  collected  in  the  digests,  and  in  the  treatises  on 
wills. 

The  doctrine  of  lapse  is  to  be  noticed.  The  meaning  of  "  lapse  " 
is  the  effect  of  the  death  of  a  legatee  before  the  testator,  or  after 
the  testator,  but  before  the  time  fixed  for  the  vesting  of  the  legacy. 
The  expression  is  more  usually  applied  to  the  first  case. 

It  is  a  general  rule  that  if  there  be  a  legacy  to  A.  of  a  chattel 
simply,  and  without  qualifying  words,  and  he  die  before  the 
testator,  the  legacy  "  lapses,"  —  that  is,  has  no  effect.  The  testa- 
tor's property  is  to  pass  by  succession  as  though  there  had  been  no 
such  legacy.  This  rule  is  now  modified  by  statute  in  England,  and  a 
number  of  our  States.  The  New  York  statute  provides  that  if  the 
legatee  (or  devisee)  be  a  child  or  other  descendant  of  the  testator, 
and  die  before  the  latter,  leaving  a  child  or  other  descendant,  the 
legacy  does  not  lapse,  but  belongs  to  the  child  or  other  descendant 
of  the  devisee  or  legatee.^ 

It  is  common,  in  a  will,  to  find  a  provision  that  if  a  particular 
legatee  die,  his  share  shall  go  to  others.  The  regular  construction 
is,  that  the  testator  meant  die  in  his  (the  testator's)  own  life-time. 
Accordingly,  in  a  case  where  the  testator  and  legatee  died  at  the 
same  instant,  the  clause  did  not  apply,  and  the  substituted  per- 
sons took  nothing,^  (a)     The  point  in  the  case  is,  that  the  legacy 

1  Armytage  v.  Wilkinson,  L.  R.  3  App.  See  also  Peard  v.  Morton,  L.  R.  25  Oh.  D. 
Cas.  355.  It  is  a  settled  rule  that  courts  394  ;  Vanderzee  v.  Slingerland,  103  N.  Y. 
lean  towards  vesting,  and  when  property  is  47.  The  same  rule  applies  where  the  words 
once  vested,  will  not  divest  it  without  "die  withmit  issue"  are  used,  though  in 
strong  grounds.  this  last  case  slight  circumstances  may  varv 

2  2  R.  S.  66,  §  52  (8th  ed.  p.  2549).    .  the  construction.     Id. 

3  Elliott  V.  Smith,  L.  R,  22  Ch.  D.  236. 


(«)  The  rule  that  the  words  "  die  with-  Sullivan,   136    Id.   227.      Nor  where   the 

out  issue,"  refer  to  death  during  the  life-  language  of   the  will   evinces  a  contrary 

time  of  the  testator,  would  not  apply  if  intent.     Mead  v.  Maben,  131  N.  Y.  255  ; 

the  first  legatee  took  a  life  estate.     Fowler  Matter  of  Denton,  137  Id.  428. 
V.  Ingersoll,  127  N.  Y.  472 ;  Mullarky  v. 


TITLE    BY   ACT   OF   THE    LAW.  615 

does  not  fail  unless  it  is  shown  that  the  legatee  dies  before  the 
testator. 

It  is  a  fatal  defect  if  the  vesting  of  the  legacy  is  to  take  place  at 
a  period  so  remote  as  to  transgress  the  "  rule  against  perpetuities." 
This  is  a  positive  rule  of  the  common  law,  that  legacies  must  vest 
in  ownership  within  the  compass  of  a  specified  life,  or  lives,  in 
being  at  the  testator's  death,  and  an  additional  period  of  twenty- 
one  years,  and  in  case  of  unborn  children,  the  usual  period  of 
gestation.  The  period  of  twenty-one  years  may  be  allowed  as  an 
absolute  period,  without  reference  to  lives.  Thus,  a  person  might 
make  a  charitable  bequest  to  a  corporation  to  come  into  existence 
within  twenty-one  years  after  his  death. ^ 

When  this  rule  is  transgressed,  the  transgressive  provision  is 
void  as  being  opposed  to  public  policy  ;  all  provisions  built  upon  it 
and  made  to  take  effect  if  it  does  not,  are  void.  There  is  a  rule 
called  the  doctrine  of  acceleration  which  may  sometimes  be  in- 
voked when  a  primary  provision  is  void,  to  bring  up  a  substi- 
tuted provision,  as  it  were,  to  the  death  of  the  testator.  The 
practical  result  is  that  the  will  is  read  as  if  the  primary  provision 
were  absent.  This  rule  cannot  be  applied  to  the  case  now  under 
consideration.^  The  case  just  mentioned  must  be  distinguished 
from  that  of  alternate  limitations,  for  in  this  case,  if  one  is  too 
remote  and  the  other  is  not,  and  the  latter  takes  effect,  it  will  be 
valid. 3  An  instance  is,  a  bequest  to  A.  for  life,  and  after  her 
death  to  be  divided  between  her  children  when,  or  if,  they  attain 
twenty-seven,  and  in  the  event  of  her  not  bearing  any  child,  to  B. 
If  she  have  no  child,  the  gift  to  B.  will  be  valid,  since  the  event  on 
which  his  interest  is  to  vest,  is  sure  to  be  ascertained  within  a 
single  life.  On  the  other  hand,  if  A.  had  borne  children,  the 
legacy  could  not  vest  in  them,  as  it  would  be  too  remote,  for  it 
might  be  requisite  to  wait  for  one  life  and  more  than  twenty-one 
years  in  addition,  to  determine  whether  the  legacy  would  vest> 

The  common-law  rale  is  modified  in  New  York  and  in  some 
other  States  so  as  to  narrow  the  power  to  postpone  the  vesting. 
It  is  confined  to  tiuo  lives  in  being  at  the  testator's  death,  and  the 

1  Cadell  V.  Palmer,  1  CI.  &  F.  372.  with  a  gift  over  in  case  he  shall  have  no 

2  Beard  v  Westcott,  Turn.  &  Russ.  25;  son  who  shall  attain  the  age  of  twenty- 
Palmer  V.  Holford,  4  Russ.  403  ;  Re  five  years,  the  gift  over  is  void  for  remote- 
Thatcher's  Trusts,  26  Beav.  365  ;  Rose  i-.  ness.  On  a  gift  to  A.  for  life,  with  a  gift 
Rose,  4  Abb.  N.  Y.  App.  Dec.  108.             .  over  if  he   shall   have  no  son  who  shall 

3  Cambridge  v.  Rous,  25  Beav.  409  ;  take  priest's  orders  in  the  Church  of 
Evers  v.  Challis,  7  H.  of  L.  Gas.  531  ;  England,  the  gift  over  is  void  for  remote- 
Schettler  v.  Smith,  41  N.  Y.  328.  ness  ;    but   a  gift   superadded,  '  or   if  he 

^  Jessel,    M.   R.,   puts   the   following    shall   have   no   son,'  is  valid,   and   takes 
illustration  in  Miles  v.  Harford,  L.  R.  12     effect  if  he  has  no  son." 
Ch.  D.  691,  703:  "On  a  gift  to  A.  for  life. 


^^^^,  THE  LAW  OF  PERSONAL  PROPERTY. 

t,erioa  of  tweiitv-one  years  is  cut  off,  except  in  the  single  case, 
relating  to  reaf  estate,  of  the  first  taker  being  an  infant  and 
dying  during  his  minority.  The  general  principles  are  quite  the 
same  as  in  the  common  law. 

Absolute  and  conditional  legacies.  —  This  is  a  distinction  that 
arises  in  the  case  of  vested  legacies.  A  legacy  is  said  to  be 
absolute  when  it  is  without  any  restriction  or  qualification 
whatever.  This  is  the  common  case.  It  is  illustrated  by  the 
gift  of  a  gold  watch,  a  sum  of  money,  and  the  like.  It  is  said  to 
be  conditional  or  defeasible,  when  some  act  or  event  may  with- 
draw it  from  the  legatee.  In  each  case  the  legacy  is  vested,  but 
in  the  one  it  cannot  be  divested,  and  in  the  other  it  can  be. 

Conditions  in  law  are  of  two  kinds,  —  precedent  and  sub- 
sequent. A  precedent  condition  must  be  performed  before  any 
title  or  right  vests;  a  subsequent  condition,  if  not  performed, 
divests  a  right  or  interest  which  has  already  vested. 

A  legacy  upon  condition  precedent  resembles  a  contingent 
legacy.  In  considering  such  a  conditional  legacy,  one's  mind  is 
directed  to  the  fact  that  the  legatee  had  something  to  do  to  cause 
it  to  vest,  while  in  a  contingent  legacy  the  uncertainty  consists 
in  the  happening  or  not  happening  of  a  prescribed  event. 

A  good  instance  of  a  conditional  legacy  of  this  form  is  that  of 
one  given  to  an  executor  bg  virtue  of  his  office,  or  for  his  care 
and  trouble.  A  gift  to  one  who  is  executor  of  the  testator  is  not 
necessarily  conditional.  It  may  be  made  simply  on  grounds  of 
friendship  or  affection.  The  first  inquiry,  then,  will  always  be, 
whether  the  gift  is  made  to  him  in  that  character  and  for  repre- 
sentative reasons.  If  not,  the  legacy  is  absolute.  What  it  is, 
is  a  matter  of  intent,  depending  upon  all  the  circumstances.^ 
There  may  be  a  presumption  that  a  legacy  given  to  an  executor 
is  given  to  him  in  that  character.^  It  may,  however,  according 
to  one  case,  be  rebutted  by  circumstances,  —  as,  for  example, 
where  there  are  two  executors,  —  if  there  be  a  great  inequality 
in  the  respective  bequests  to  them.^  The  same  conclusion  was 
arrived  at  where  the  property  was  given  to  a  tenant  for  life,  and 
after  his  death  the  bequest  to  the  executor  was  payable^ 

If  the  legacy  is  given  by  virtue  of  office,  it  does  not  vest  if 
the  executor  does  not  prove  the  will,  even  though  by  bodily  age 
and  mental  infirmity  he  is  incapable  of  proving  it,^  or  is  pre- 
vented by  illness.^     Still,  if  being  at  a  distance  he  take  steps  to 

1  Compton  V.  Bloxham,  2  Colly.  201.  *  In   re  Reeve's  Trusts,   L.  R.  4   Ch. 

2  Stackpoole  v.  Howell,  13  Ves.  417.  D.  841. 

3  Jewis    V.    Lawrence,    L.    R.    8    Eq.  5  Hanburj^  v.  Spooner,  5  Beav.  630. 
345.  6  2>e    Hawkin-s  Trusts,  33  Beav.  570. 


TITLE    BY    ACT    OF    THE    LAW.  617 

prove  it,  manifesting  his  intent,  and  die  before  it  is  proved,  the 
legacy  may  be  payable.^ 

It  has,  however,  been  held  that  if  the  executor  at  first  decline 
to  serve,  and  in  the  mean  time  an  agent  be  appointed  to  take  charge 
of  the  estate,  and  subsequently  the  person  named  as  executor 
qualify,  there  should  be  deducted  from  his  legacy  the  expenses 
fairly  attributable  to  the  appointment  of  the  agent.^  In  such  a 
case  of  renunciation  and  retraction,  interest  on  the  legacy  only 
runs  from  the  time  of  proving  the  will;^  A  legacy  to  an  executor 
of  this  sort  is  not  a  contract,  but  is  a  true  legacy,  and  subject  to 
the  rules  governing  legacies.'* 

Qualified  oivnership  in  legacies.  —  A  testator  may  give  a  legatee 
a  qualified  instead  of  a  complete  ownership,  such  as  a  life  interest. 
The  legacy  may  be  either  of  specific  articles  or  a  general  residue. 
In  the  gift  of  specific  articles  a  distinction  must  be  taken  between 
such  articles  as  cannot  be  used  without  consuming  them,  and 
those  wliich  can  be  so  used.  In  the  former  class  of  cases  a  gift 
of  a  partial  interest  is,  in  substance,  a  gift  of  the  whole,  since 
otherwise  the  legacy  would  be  practically  inoperative.  But  in 
such  cases,  if  there  were  a  direction  to  sell,  there  might  be  a  life 
interest  given  in  the  proceeds.  If  there  be  a  residuary  gift  of 
perishable  articles  to  persons  in  succession,  there  is  a  presump- 
tion that  the  testator  intended  that  the  property  should  be  sold 
and  con\erted  into  permanent  property.  This  would  mean  in 
England  conversion  into  the  consolidated  government  debt  (con- 
sols). This  is  known  as  the  rule  in  Howe  v.  Earl  of  Dartmouth.^ 
In  this  country  the  investment  would  be  made  in  such  securities 
as  were  sanctioned  by  the  court  in  each  State.  This  presumption 
may  be  rebutted  by  evidence  that  the  testator  intended  that  the 
life  tenant  should  enjoy  the  goods  in  their  original  form  (m 
specie').^  The  general  rule  is  that  the  person  having  the  ultimate 
interest  may  have  the  residue  ascertained  and  converted  into  the 
authorized  securities  within  a  year."  If  this  is  not  done,  but 
the  estate  is  realized  at  some  later  day,  it  will  be  necessary  to 
ascertain  retrospectively  what  was  the  residue  at  the  end  of  the 

1  Lewis  V.  Mathews,  L.  R.  8    Eq.  277.  of   intent  on  the  testator's  part  will  pre- 

2  Morris  v.  Kent,  2.  Edw.  Ch.  175.  vent  the  application  of  the  rule  in  Howe 

3  Angermann  v.  Ford,  29  Beav.  349.  v.  Eail  of  Dartmouth.     See  Blann  v.  Bell, 
*  Att'y-Gen'l  v.  Robins,  2  P.  Wms.  23,  2  De  G.  M.  &  G.  775  ;  Vaehell  v.  Roberts, 

25  ;    Duncan    v.   Watts,    16    Beav.    204  ;  32    Beav.    140.     In   re    Sewell's    Estate, 

Debuly  v.  Eckett,  4  Jur.  N.  .s.  805.  L.    R.    11    Eq.    80  ;    Wilday    v.    Sandys, 

5  Howe  V.    Earl  of  Dartmouth,  7  Ves.  L.  R.  7  Eq.  455  ;  Boys  v.  Boys,  28  Beav. 

137.  436. 

^  Morgan    v.    Morgan,    14    Beav.    72.  '^  Wightwick  v.  Lord,  6  H.  of  L.  Cas. 

The  question  thus  becomes  one  of   con-  217. 
struction  of  the  will  ;    slight  indications 


Ql^  THE  LAW  OF  PERSONAL  PROPERTY. 

year,  attributing  a  due  proportion  to  capital  and  a  due  proportion 

to  interest.^ 

Where  the  legacy  is  specific,  the  life  tenant  may  in  general  enjoy 
it  in  its  original  form.  An  example  is  the  gift  of  a  law  library  to  be 
used  for  life,  while  the  books  themselves,  subject  to  the  life  inter- 
est, are  bequeathed  to  another.  In  this  case  the  life  tenant 
would  regularly  give  the  person  in  remainder  a  list  or  inventory 
of  the  chattels  bequeathed.  If  any  unnecessary  injury  were 
done  them,  or  threatened,  a  court  of  equity  would  intervene,  and 
require  security. 

Important  questions  arise  as  to  the  right  of  a  life  tenant  to 
dividends  on  stocks  bequeathed  by  the  testator.  It  is  a  general 
rule  that  dividends  declared  after  the  testator's  death,  though  the 
profits  were  made  in  his  lifetime,  form  part  of  the  income  and 
not  of  the  body  or  corpus  of  his  estate.^  (a)  So,  if  shares  be 
settled  on  A.  for  life,  and  after  his  death  on  another,  any  dividend 
declared  before  A.'s  death,  and  payable  afterwards,  belongs  to  A. 
This  is  on  the  ground  that  the  declaration  of  the  dividend 
separates  it  from  the  mass  of  the  estate,  and  it  becomes  a  debt.^ 
There  is  no  fixed  rule  that  surplus  profits,  when  divided  by  means 
of  an  extraordinary  dividend,  shall  be  treated  as  capital  as 
between  the  tenant  for  life  and  the  succeeding  owner.  It  is  for 
the  company,  if  they  have  power  to  increase  the  capital,  to  say 
whether  the  profits  shall  be  treated  as  capital  or  not.*  Accord- 
ingly, new  shares  of  corporate  stock  representing  surplus  property, 
and  distributed  to  stockholders,  would  not  belong  to  the  life 
tenant.  In  such  a  case  the  surplus  is  retained  by  the  corpora- 
tion and  used  in  its  business.^  (5)  It  has  been  sometimes  held 
that  the  court  will  look  into  the  question  of  the  source  of  the 

1  Wightwicku.  Lord,  H.  of  L.  Cas.  227.     some  cases  to  the  contrary  (Clarkson   v. 

2  Bates  V.  Mackinley,  8  Jur.  n.  s.  Clarkson,  18  Barb.  646,  and  Van  Doren 
299.  V.   Olden,   19   N.   J.   Eq.   176),  but  these 

3  Wright  V.  Tuckett,  1  Johns.  &  H.  do  not  appear  to  proceed  on  correct  prin- 
266.  ciples.     The    case  of   Sproule   v.   Bouch, 

*  Sproule  V.  Bouch,   L.  R.  29,  Ch.  D.  puts   the   whole    subject    on   satisfactory 

635  (C.  A.).  grounds,  in  making  the  sole  test  the  act  of 

"  Ex    parte    Brown,     14    R.    L    371 ;  the   corporation    in    determining   whether 

Minot  V.  Paine,  99  Mass.  101.     There  are  the  surplus  profits  shall  be  capital  or  not. 


(ffl)  Matter  of  Kernochan,  104  N.   Y.  is  believed  that  the  rule  more  commonly 

618.  recognized  in   the   United  States   is   "to 

(6)  See  also  Daland  v.   WilliamSs,  101  give    all    surplus    earnings,   in    whatever 

Mass.  571  ;  Rand  v.  Hubbell,  115  Mass.  form   distributed,    to    the     life    tenant," 

461  ;    Gifford    v.    Thompson,    Id.    478  ;  Gilkey  y.  Paine,  80  Me.  319      Richardson 

Davis   V.   Jackson,   153  Mass.    58;    Sag-  (a  Richardson,  75  Id.  570  ;  Riggs  i?.  Cragg, 

den    V.    Aisbury,    L.  R.   45  Ch.   D.  237  ;  26   Hun,  89  ;    Earp's  Appeal,   28  Pa.  St. 

In  re  Barton's  Trusts,  L.   R.   5  Eq.  238.  368  ;    Smith's    Estate,    140   Pa.    St.   344; 

Notwithstanding  the  views  of  the  text,  it  Woerner  on  Administration,  §  457. 


TITLE   BY   ACT    OF    THE    LAW.  619 

profits,  discriminating  between  those  that  are  recent  and  such  as 
are  the  accumulations  of  past  years.  There  would  appear  to  be 
no  solid  basis  for  such  a  distinction.  As  said  recently  in  a  case 
of  high  authority,  "  profits  retain  their  character  of  income  until 
they  are  converted  into  capital."  ^  (a)  There  has  as  yet  been  no 
authoritative  adjudication  on  the  point  in  New  York. 

A  further  question  arises  as  to  apportionment  when  periodical 
payments  are  to  be  made  to  the  life  tenant,  and  he  dies  before 
the  day  of  payment  arrives.  By  the  common  law,  if  the  pay- 
ment is  of  interest,  as  that  accrues  from  day  to  day  the  life 
tenant,  or  his  representatives,  is  entitled  to  interest  to  the  day  of 
his  death.  But  in  the  case  of  annuities  or  dividends  not  yet 
payable  at  the  life  tenant's  death,  there  is  no  apportionment.^ 
This  rule  included  dividends  paid  upon  government  securities  as 
well  as  in  incorporated  companies.  The  rule  has  been  changed  in 
England  by  statute.^  The  effect  of  the  statute  is  that  if  a  com- 
pany is  so  constituted  that  its  dividends  are  declared  at  fixed 
periods,  as  soon  as  one  is  declared  it  is  apportionable.*  It  has 
also  been  held  that  the  statute  applies  to  occasional  dividends.^ 

There  is  a  similar  statute  in  New  York  and  in  some  other 
States,  —  for  example,  Massachusetts.^  Both  in  the  English  and 
New  York  statutes  the  rule  applies  to  wills  made  before  the  enact- 
ment of  the  statute,  if  the  testator  die  afterwards. 

(3)  Incidents  to  legacies.  —  There  are  several  rules  of  a  peculiar 
nature  governing  legacies,  which  may  be  grouped  together  under 
this  head.  These  are :  1.  Abatement.  2.  Ademption.  3.  Satis- 
faction. Reference  will  also  be  made  to  special  rules  governing 
legacies  to  one's  debtor. 

1.  Abatement.  This  word  refers  to  the  rule  of  priority  or 
equality  in  payment  when  the  testator's  net  estate  is  insufficient 
to  pay  all  his  legacies.  Such  an  insufficiency  may  exist  either  at 
the  testator's  death,  or  may  occur  afterwards.     It  may  be  by  the 

1  Sproule  V.  Bouch,  L.  R.  29,  Ch.  D.  those  uanied  Viy  the  testator.     Matter  of 

635,  655  ;  Price  v.  Anderson,  15  Sim.  473  ;  Gerry,  103  N.  Y.  445. 
In  re  Hopkins'  Trusts,  L.  R.  18  Eq.  696.  ^  Warden  v.   Ashburner,    2    De    G.    & 

There    is    another   class    of   cases   where  Sm.  366. 

money  is   invested   on   interest,  and  the  ^  4  ^  5  "\Vm.  IV,  c.  22,  §  2. 

interest  etc.,  is  given  to  one  for  life.    If  on  a  *  Re  Maxwell's  Trusts,  1  Hem.  &  M. 

sale  a  surplus  beyond  the  original  invest-  610. 

ment  is  produced,  the  life  tenant  has  no  ^  Carr  v.  Griffith,  L.  R.  12  Ch.  D.  655. 

share  in  it,  whatever  may  be  the  rule  as  ^  In  New  York,  Laws  of  1875,  ch.  542; 

to  stock  in  incorporated  companies.     This  Rev.  St.  (8th  ed. )  p.  2563  ;  Massachusetts 

is  the  rule,  thovigh  securities  are  selected  Pub.  St.  ch.  136,  §  25  ;  Adams  v.  Adams, 

by  all  the  parties  in  interest  differing  from  139  Mass.  449. 


(a)  See  Bouch  v.  Sproule,  L.  R.  12  App.  Cas.  385. 


620  THE  LAW  OF  PERSONAL  PEOPERTY. 

misfortune  or  by  the  fault  of  the  executor.  Waste  of  assets 
through  his  misconduct  is  technically  ternaed  a  devastavit.  The 
general  rules  of  priority  may  be  superseded  by  the  words  of  the 
will,  since  the  testator  has  the  power  to  direct  that  in  case  of 
deficiency,  certain  legacies  shall  be  paid  before  others.  In  con- 
sidering the  general  rules  of  priority  the  different  kinds  of  legacies 
will  be  contrasted. 

A.  Residuary  legacies,  as  contrasted  with  such  as  are  specially 
luimed.  It  is  a  general  rule  that  residuary  legacies  must  abate 
rather  than  particular  ones.^  This  rule  would  not  apply  if  a 
fund,  assumed  to  equal  a  fixed  amount,  was  given  in  the  first 
instance,  in  part,  in  specified  sums,  to  A.,  B.,  and  C,  and  the 
'•  overplus"  to  D.  This  would  simply  be  a  mode  of  dividing  the 
fund ;  and  if  there  was  a  deficiency,  all  the  legacies  would  abate 
equally. 2  This  statement  does  not  extend  to  a  case  where  the 
fund  is  uncertain  and  indefinite.^ 

B.  Demonstrative  legacies  as  contrasted  with  such  as  are  pecu- 
niary. A  demonstrative  legacy  has  the  preference  so  far  as  the 
designated  fund  from  which  it  is  to  be  paid  is  concerned.  That 
being  exhausted,  there  is  no  preference  over  other  legacies  as  to 
the  general  assets.*  If  the  specified  fund  fail  altogether,  the 
legacy  is,  in  fact,  a  general  one." 

C.  Specific  legacies,  as  contrasted  with  demonstrative  and  other 
legacies.  If  the  subject  of  a  specific  legacy  be  still  subsisting,  it  is 
to  be  paid,  even  though  nothing  is  left  for  the  pecuniary  legatees.^ 
This  rule  will  be  applied  to  a  demonstrative  legacy  as  long  as  the 
fund  pointed  out  is  not  exhausted. 

Where  there  are  two  or  more  specific  legacies,  and  the  estate 
is  not  sufficient  to  pay  them,  they  must,  as  between  themselves, 
abate  proportionally.  If  one  legatee  be  insolvent,  the  amount 
that  should  have  been  paid  by  him  in  the  discharge  of  debts,  etc. 
must  be  made  up  by  the  others,  the  genei'al  estate  being  insuffi- 
cient.' It  is  a  general  rule,  that  where  there  is  a  number  of  lega- 
cies belonging  to  the  same  class,  such  as  several  specific  legacies, 
or  several  pecuniary,  they  abate  ratably,  unless  there  is  clear  and 
conclusive  proof  that  priority  was  intended.^  (a) 

1  Purse  V.  Snaplin,  1  Atk.  414,  418.  5  Roberts  v.  Pocock,  4  Ves.  150. 

2  Page  V.  Leapingwell,  18  Ves.  463.  6  Driukwater   v.    Falconer,  2  Ves.   Sr. 
8  Baker  v.  Farmer,  L.  R.  3  Ch.  App.537.     623. 

*  Sellon  V.  Watts,  9  W.  R.  847  ;    Mul-  7  Connolly  v.  Farrell,  10  Beav.  142. 

lins  V.  Smith,  1  Dr.  &  Sm.  204.  8  Miller  v.  Huddlestone,  3  M.  &  G.  513. 

(a)  There  is  an  exception  to  this  rule  Co.  v.  Bryant,  52  Conn.    311.      Such   a 

where  the  legacy  is  given  for  a  valuable  legacy,  though  general,   takes  precedence 

consideration,  —  e.   g.,  in   lieu  of  dower,  of   specific    as  well    as    general    legacies. 

Borden  v.  Jenks,  140  Mass.  562  ;  Security  Borden  v.  Jenks,  supra. 


TITLE    BY    ACT    OF    THE    LAW.  621 

The  final  point  to  be  noticed  is  the  effect  of  payment  or  ap- 
propriation by  the  executor  to  pay  some  of  the  legacies,  where 
there  is  a  subsequent  waste  (^devastavit)  by  him,  causing  a  defi- 
ciency. It  has  been  held  that  legatees  who  may  have  received  their 
amounts,  cannot,  in  such  a  case,  be  called  on  to  contribute,  there 
having  been  no  original  deficiency  in  the  estate  itself.^  But 
where  there  is  merely  a  setting  apart,  or  appropriation,  there 
must  have  been  a  consent  by  the  legatees  to  the  appropriation, 
when  the  fund  is  uncertain  in  amount,  or  indefinite.^ 

2.  Ademption.  A  legacy  is  said  to  be  "  adeemed "  when, 
owing  to  some  change  in  the  subject-matter,  or  to  some  act  of  the 
testator,  it  is  not  payable  to  the  legatee.  Ademption  is  for  the 
most  part  applicable  to  specific  legacies,  but  it  may  appertain, 
under  special  circumstances,  to  a  general  legacy,  as  where  ad- 
vances are  made  by  the  testator  to  the  legatee  on  account  of  it, 
after  the  execution  of  the  will,  and  before  his  death.  Ademption 
is  sometimes  likened  to  a  revocation.  This  view  is  not  strictly 
correct,  since  it  may  take  place  by  a  mere  accidental  destruction 
of  the  chattel  bequeathed,  as  well  as  by  an  intentional  disposition 
of  it,  —  e.  g.^  a  sale.  The  fundamental  idea  of  a  strict  ademption 
seems  to  be  that  there  has  ceased  to  be  any  subject-matter  on 
which  the  testamentary  words  can  act. 

Recurring  to  the  ademption  of  specific  legacies,  if  the  subject  of 
the  bequest  does  not  remain  in  specie  at  the  time  of  the  testator's 
death,  it  is  adeemed  without  considering  the  testator's  intent 
{animus  adimendi').^  Accordingly,  if  the  specific  goods  are  lost 
at  sea  by  shipwreck,  there  is  an  ademption.  If  they  were  insured, 
the  insurance  money  would  not  pass  to  the  legatee.*  A  specific 
legacy  of  stock  is  adeemed  by  a  sale  of  it.^  So  if  the  testator 
bequeathed  long  annuities,  and  sold  them,  purchasing  new  annu- 
ities, differing  only  in  the  fact  that  they  terminated  a  quarter 
of  a  year  sooner.^  If  the  stock  (government  bonds)  be  con- 
verted by  statute,  —  as,  for  example,  where  an  option  is  given  the 
holder  to  have  the  bonds  paid  off  or  the  interest  reduced,  and  he 
chooses  the  latter,  —  there  is  no  change  in  the  identity  of  the  debt, 
and  no  ademption."  A  direction  by  the  testator  to  an  agent  to 
sell  stock  specifically  bequeathed,  followed  up  by  a  sale  after  the 
testator^s  death,  is  not  an  ademption.^ 

1  Knight  V.  Knight,  15  L.  J.  n.  s.  ^  Ashburner  v.  Macgiiire,  2  Bro.  C.  C. 
Ch.  363.                                                                 108  ;   Humphreys  v.    Humphreys,    2  Cox 

2  Baker  v.  Farmer,   L.  R,  3  Ch.  App.     Eq.  184. 

537.  0  Pattison  v.  Pattison,  1  M.  &  K.  12. 

3  Barker  v.  Rayner,  5  Madd.  208 ;  '  Browne  v.  M'Guire,  Beatty,  3J8  ; 
Hertford  v.  Lowther,  7  Beav.  107.  Oakes  v.  Oakes,  9  Hare,  666. 

4  Durraut  v.  Friend,  5  De  G.  &  Sm.  343.  »  Harrison  v.  A.«her,  2  De  G.  &  Sm.  436. 


^522  THE  LAW  OF  PERSONAL  PROPERTY. 

If  one  partner  bequeath  to  another  all  his  share  in  the  profits 
np  to  a  specified  date,  and  subsequently  draws  out  the  profits, 
there  will  be  an  ademption.^  So  a  bequest  of  a  debt  is  adeemed, 
if  paid  cither  voluntarily  or  by  compulsion,  to  the  testator  during 
his  lifetime.2  gome  early  cases  drew  a  distinction  between 
voluntary  and  compulsory  payments,  regarding  ademption  as  a 
matter  of  intention.  These  are  not  now  followed,  the  true  test 
being  whether  the  subject-matter  exists  in  specie.  So  a  release  in 
a  will  of  interest  due  on  a  debt  due  the  testator  from  the  legatee, 
is  equivalent  to  a  specific  legacy  of  the  interest ;  and  if  the  debt 
be  paid  to  the  testator  in  his  lifetime,  the  legacy  is  adeemed.'^ 
Other  cases  upholding  ademption  by  payment  of  a  debt  bequeathed 
will  be  found  in  the  note.*  This  doctrine  is  not  applicable  to  a 
demonstrative  legacy,  since  the  particular  fund  referred  to  is  not 
of  the  essence  of  the  legacy.  If  that  fail,  it  is  still,  as  has  been 
already  stated,  a  general  legacy.^ 

A  specific  legacy  described  in  the  :vill  as  being  in  a  particular 
place,  is  adeemed  by  removal  from  that  place.  Thus,  if  "  furni- 
ture in  house  No.  1 "  be  bequeathed,  there  will  be  an  ademption  if 
it  be  removed  to  Nos.  3  or  5,  though  not  if  the  removal  be  tempo- 
rary, or  for  a  special  purpose.^ 

Wherever  a  sale  or  other  like  act  regularly  causes  ademption, 
the  principle  will  not  be  extended  to  a  sale,  etc.,  by  one  having 
no  mental  capacity  to  act,  nor  by  a  person  having  no  authority  to 
sell.'^  If,  however,  the  property  of  an  insane  testator  were  sold 
under  order  of  a  court  having  jurisdiction  to  make  the  order,  the 
legacy  would  be  adeemed.^ 

A  change  of  investment  might  be  so  complete  and  radical  as  to 
constitute  an  ademption,^  but  not  a  mere  change  in  the  form  of 
investment,  such  as  placing  it  in  the  name  of  a  trustee  for  his 
use  instead  of  his  own  name,  nor,  perhaps,  a  sale  where  he  had 
reserved  a  valid  and  enforceable  option  to  have  the  thing  sold 
returned  to  him.^*^  A  bequest  having  been  once  adeemed,  is  not 
restored  by  a  subsequent  confirmation  of  the  wilL^^ 

1  Aston  V.  Wood,   43  L.  J.  (Ch.)  715.     cer,  21  Beav.   548  ;   Blagrove  i;.  Coore,  27 

2  Stanley  v.    Potter,  2  Cox    Eq.    180.     Beav.  138. 

See  also  Innes  v.  Mitchell,  6  Ves.  461  ;  ^  Jenkins  v.  Jones,  L.  R.   2  Eq.   323  ; 

Barker  V.  Rayner,  2  Russ.  122.  Taylor  i'.  Taylor,  10  Hare,  475.   iie  Kitchen, 

3  Sidney  v-  Sidney,  L.  R.  17  Eq.  65.         31  L.  T.  642. 

*  Sidebotham  v.  Watson,  11  Hare,  170;  8  jones   v.  Green,    L.   R.    5  Eq.    555  ; 

Phillips  V.  Turner,    17   Beav.  194  ;   Fryer  In  re  Freer,  L.  R.  22  Ch.  D.  622. 

V.  Morris,  9  Ves.  360.  9  Gardner  v.  Hatton,  6  Sim.  93. 

s  Campbell  v.  Graham,  1  Russ.  &  M.  lo  See  Collison  v.  Curling,  9  CI.  &  F.  88, 

453  ;  Clark  u.  Browne,  2  Sm.  &  G.  524.  aff' g  s.  c.  4  M.  &  C.  63.     The  deci.sion   in 

•5  Heseltine  v.  Heseltine,  3  Madd.  276  ;  these  cases  seems  to  involve  the  principle 

Colleton  V.  Garth,  6  Sim.  19  ;  Houlding  v.  stated  in  the  text. 

Cross,  1  Jur.  k.  s.   250 ;  Spencer  v.  Spen-  "  Cowper  v.  Mantell,  22  Beav.  223. 


TITLE   BY   ACT   OF   THE   LAW.  623 

The  remaining  case  to  be  noticed,  is  that  of  any  legacy,  whether 
specific  or  otherwise,  which  is  advanced  or  given  by  the  testator 
before  his  death,  to  the  legatee.  The  rule  is,  that  where  a  testator 
gives  a  legacy  for  a  particular  purpose,  and  afterwards  accomp- 
lishes the  purpose  himself,  the  legacy  is  satisfied.  The  act  of 
providing  one's  wife  with  ready  money  at  his  decease,  so  that 
she  could  control  it  without  application  to  the  executors,  would 
not  come  within  the  rule.^ 

Questions  of  this  kind  frequently  arise  between  parent  and  child, 
presenting  the  inquiry  as  to  double  portions  in  two  aspects, — 
one  where  there  is  first  a  marriage  settlement  providing  for  chil- 
dren of  the  marriage,  and  afterwards  provisions  by  will,  and  the 
converse  case  of  provisions  being  first  made  by  will,  and  afterwards 
in  some  other  form,  —  e.g.,  a  marriage  settlement.  It  is  the  last 
of  these  cases  which  is  now  under  consideration,  and  which  is  the 
simpler  of  the  two.  There  is  a  general  presumption  of  law  against 
double  portions,  and  the  difficulty  lies  in  applying  this  presumption 
to  particular  cases  as  they  arise.  The  whole  subject  received  dis- 
cussion and  clear  elucidation  in  the  case  of  Lord  Chichester  v.  Cov- 
entry.2  The  facts  of  that  case  presented  an  instance  of  a  marriage 
settlement  preceding  a  will,  but  the  whole  subject  was  considered, 
and  the  discussion  is  highly  valuable  as  to  the  present  matter. 

There  is  a  distinction  in  such  cases  between  ademption  and 
satisfaction.  Ademption  applies  to  the  case  where  the  legacy 
precedes  the  settlement ;  satisfaction,  where  the  settlement  pre- 
cedes the  legacy.  In  the  first  case,  the  legacy  is  considered  to  be 
"  taken  out "  of  the  will  (adeemed)  by  the  subsequent  advance- 
ment. Satisfaction  is  the  more  appropriate  name  for  the  sec- 
ond case,  as  the  settlement  had  already  created  a  claim.  It  has 
been  defined  to  be  the  donation  of  a  thing  with  the  intention  that 
it  is  to  be  taken,  either  wholly  or  in  part,  in  extinguishment  of  some 
prior  claim  of  the  donee.^  The  presumption  against  double  portions 
may  be  rebutted  by  evidence  to  the  contrary,  (a)  Intrinsic  evidence 
may  be  found  in  the  respective  instruments.  Thus,  where  the 
two  provisions  are  of  the  same  nature,  or  differ  but  slightly,  the 
presumption  is  against  the  intention  to  create  double  portions. 
Otherwise,  if  the  provisions  are  of  a  different  nature.*  Ademp- 
tion may  be  more  easily  inferred  than  satisfaction,  since  the 
testator  has   unlimited    power  to   carry  it   into    effect,  while  in 

1  Pankhurst  v.  Howell,  L.  R.  6  Ch.  App.  Tudor,  382,  6th  ed.  note  to  Chancey's 
136.  Case). 

2  L.  R.  2  H.  of  L.  Cas.  71.  *  Weall   v.  Rice,   2  Russ.   &   M.  251, 

3  2  Leading  Cases  in  Equity  (White  &  267. 


(a)  See  Lacon  v.  Lacon  [1891],  2  Ch.  482. 


g24  THE  LAW  OF  PERSONAL  PROPERTY. 

satisfaction  the  consent  of  the  party  having  the  claim  must  be 
obtained  before  something  else  can  be  legally  substituted  in  its 

place.^  , 

The  case  of  ademption  by  payment  before  the  testator  s  death 
may  be  provided  for  in  the  will  itself.  This  case  is  still  stronger 
than  those  already  discussed,  since  there  is  positive  evidence  of  an 
intent  to  adeem,  instead  of  a  mere  presumption.^ 

3.  Satisfaction.  This  topic  has  been  partly  anticipated  in 
pointing  out  the  distinction  between  it  and  ademption.  The 
f  undaniental  idea  here  is,  that  the  legatee  has  a  true  claim  against 
the  testator,  and  a  presumption  is  urged  that  the  legacy  satisfies 
the  debt.  This  subject  will  be  further  considered  under  two 
general  divisions  :  first,  satisfaction  in  general,  and  second,  as 
between  parent  and  child,  including  "double  portions." 

First.  Satisfaction  in  general.  It  is  a  general  rule  of  law,  as 
well  as  of  good  sense,  that  a  legacy  "  imports  a  bounty."  It  is 
apparently  intended  as  a  gift,  and  not  as  payment  of  debts.  Still, 
it  is  equally  plain  that,  if  the  debtor,  in  making  a  provision  in  his 
will  in  favor  of  a  creditor,  makes  it  sufficiently  clear  that  he 
intends,  through  the  form  of  a  legacy,  to  discharge  a  debt,  his 
intent  must  be  carried  out.  Between  these  two  propositions,  there 
is  debatable  ground.  An  inquiry  arises  as  to  what  shall  be  the 
presumed  intent  of  the  testator  in  case  the  will  is  silent  when  he 
gives  a  legacy  to  a  creditor  perhaps  equal  to  or  greater  than  the 
amount  of  the  claim.  The  courts  have,  by  force  of  decision,  estab- 
lished a  set  of  rules,  to  some  extent  artificial,  which  will  be  stated. 

Rule  1.  A  legacy  of  the  same  nature  as  a  debt,  equal  or  greater 
in  amount,  without  special  qualification,  will  be  presumed  to  be 
given  in  satisfaction  of  the  debt.^  Under  this  rule,  land  is  not  a 
satisfaction  for  money,  nor  money  for  land,  not  being  of  the  same 
nature.  Land  should  be  given  for  land,  and  personal  estate  for 
personal  estate.* 

Rule  2.  Slight  circumstances  are  laid  hold  of  by  the  courts  to 
overcome  the  presumption,  (a)  A  court  of  equity  leans  against 
satisfaction  of  debts  by  legacies.^     The   whole   doctrine   would 

1  Lord  Chichester  17.  Coventry,  supra,  "satisfaction"  and  "ademption  "  are  used 
p.  87.  The  case  of  Earl  of  Durham  v.  somewhat  indiscriminately,  though  Denio, 
"Wharton,  3  CI.  &  F.  146,  is  a  leading  in-  J.,  in  his  opinion,  says  that  "ademption" 
stance  of  ademption  ;  that  of  Lady  Thynne  is  the  most  significant,     p.  40. 

V.  Earl  of  Glengall,  2  H.  of  L.  Cas.  181,  of  3  Bengough  v.  Walker,    15  Ves.    507 

satisfaction.  512  ;  Chaplin  v.  Chaplin,  3  P.  Wms.  245. 

2  Langdon  v.  Astor's  Executors,  16  *  Bellasis  v.  Uthwatt,  1  Atk.  426,  428. 
N.  Y.  9,  33-57.  In  this  case  (one  of  6  Lady  Thynne  v.  Earl  of  Glengall,  2 
ademption  of  a  general  legacy),  the  words  H.  of  L.  Cas.  131,  153. 

(a)  Sheldon  v.  Sheldon,  133  IST.  Y.  1. 


TITLE    BY   ACT    OF   THE    LAW.  625 

now  be  rejected  if  it  were  new,  and  the  courts  will  not  extend  it 
beyond  its  precise  limits.^ 

Rule  3.  A  legacy  in  satisfaction  of  a  debt  must  be  of  a  fixed 
amount,  and  not  uncertain.  It  must  be  absolute,  and  not  contin- 
gent.2  A  gift  of  a  residue  cannot  be  a  satisfaction  of  a  debt,  as  the 
amount  is  in  its  nature  uncertain,  and  may  be  less  than  the  debt.^ 
So  a  debt  is  not  even  partially  satisfied  by  a  legacy  of  a  less  amount,^ 
nor  by  one  payable  on  different  terms  from  the  debt.^ 

Rule  4.  Any  special  language  in  the  will  may  introduce  a  dif- 
ferent principle  from  the  presumption  which  prevails  when  the 
will  is  silent.  Under  this  rule,  a  legacy  of  a  residue  may  show 
the  intent  of  the  testator  to  be  a  direction  to  ijay  a  deht^  and  so  be 
carried  out  pro  tanto,  if  the  residue  be  not  equal  to  the  debt.^ 
So,  if  the  testator  should  use  the  words  "  after  the  payment  of  my 
debts,'^  and  then  give  legacies,  among  others,  to  a  creditor,  the 
special  words  would  preclude  the  presumption  that  he  intended 
the  legacy  to  be  in  satisfaction  of  the  debt."  (a) 

Again,  if  a  legacy  be  given  in  full  satisfaction  of  all  claims  that 
the  legatee  may  have  against  the  testator,  the  word  "  claims  " 
cannot  be  construed  to  include  a  claim  belonging  to  the  legatee's 
wife.^  If  the  testator,  by  mistake,  describes  the  debt  as  larger 
than  it  is  in  fact,  and  there  is  no  evidence  on  the  face  of  the 
will  of  an  intent  to  give  the  larger  sum,  except  as  being  the 
amount  of  the  indebtedness,  only  the  amount  actually  due  can  be 
enforced.^ 

Rule  5.  Parol  or  extrinsic  evidence  is  admissible,  both  to  show 
that  the  legatee  was  a  creditor,  and  to  fortify  the  presumption  of 
satisfaction,'^  as  well  as  to  rebut  it,ii  but  not  to  alter  the  terms  of 
the  bequest.  A  legacy  in  satisfaction  of  all  claims  of  A.  could 
not  be  shown  by  such  evidence  to  mean  claims  which  A.  held  as 
executrix.12 

Second.  Satisfaction,  as  between  parent  and  child.  This  case 
presents  the  subject  of  "  double  portions,"  not  as  in  the  case  of 

1  Richardson  v.  Greese,  3  Atk.  65,  68  ;  9  Wilson  v.  Morley,  L.  R.  5  Ch.  D. 
Hassell  i-.  Hawkins,  4  Drew,  468.  776.     This   case   was   distinguished    from 

2  Spinks  V.  Robins,  2  Atk.  491.  Whitfield   v.   Clemment,   1   Mer.    402,    to 

3  Barret  v.  Beckford,  1  Ves.  Sr.  519 ;  De  the  contrary,  for  the  reason  that  in  the 
Vese  V.  Pontet,  1  Cox,  Eq.  188.  last-named  case  there  was  evidence  of  an 

*  Gee  V.  Liddell,  35  Beav.  621.  intent  to  confer  a  bounty. 

6  Haynes  v.  Mico,    1  Bro.  C.  C.  129  ;  lo  Pole    v.   Lord   Somers,    6    Ves.   309, 

Adams  V.  Lavender,  1  M'Cl.  &  Y.  41.  321. 

6  Philips  V.  Philips,  3  Hare,  281.  "  Wallace  v.  Pomfret,  11  Ves.  542. 

7  Jefferies  v   Michell,  20  Beav.  15.  12  Dixon  v.   Samson,    2  Y.   &  C.   566 ; 

8  Parmiter  w.   Parmiter,  1  Johns.  &  H.  Parmiter  v.  Parmiter,  supra. 
135  ;  aftM  3  L.  T.  N.  s.  799. 


(a)  Bradshaw  v.  Huish,  L.  R.  43  Ch.  D.  260  ;  Boughton  v.  Flint,  74  N.  Y.  476. 

40 


526  THE  LAW  OF  PERSONAL  PROPERTY. 

"  ademption  "  already  considered,  but  rather  under  circumstances 
where  the  child  has  a  claim,  — e.  g.,  by  marriage  settlement,  — and 
the  question  is  whether  the  parent  has  satisfied  the  claim.  The 
court  does  not  lean  against  the  doctrine  of  satisfaction  in  this  class 
of  cases,  as  it  does  in  ordinary  debts,  but  rather  favors  it,  owing 
to  its  hostility  to  double  portions.  A  leading  modern  case  is  the 
case  of  Lady  Thynne  v.  The  Earl  of  Glengall,^  already  cited  in  an- 
other connection.2  In  this  case  there  was  a  marriage  settlement 
by  a  father  upon  a  daughter,  in  which  he  agreed  to  transfer  to 
trustees  certain  stock  in  trust  for  his  daughter  for  life,  and  after 
her  death  for  the  children  of  her  marriage,  as  her  husband  and 
she  should  joinUy  appoint.  In  his  will  the  father  gave  a  moiety 
of  the  residue  of  his  personal  estate  in  trust  for  his  daughter  for 
life,  remainder  to  her  children  (not  confining  himself  to  the  chil- 
dren of  the  marriage,  as  the  settlement  did),  as  nlie  should  appoint 
(omitting  the  husband).  Notwithstanding  these  differences,  and 
the  fact  that  the  gift  was  a  residue,  the  will  was  held  a  satis- 
faction of  the  portion  under  the  settlement  as  far  as  it  would  go. 
Assuming  that  a  residue  was  uncertain  in  amount,  it  should  apply 
for  what  it  was  worth.  The  court  wholly  threw  out  of  view  the 
cases  as  to  satisfaction  of  a  debt,  holding  that  they  had  no  appli- 
cation.^ This  case  is  understood  to  have  settled  the  law  on  clear 
and  satisfactory  grounds. 

There  should  be  mentioned  here  the  subject  of  a  legacy  to  a 
testator's  debtor.  A  testator  may,  if  he  will,  make  a  legacy  to 
a  debtor  of  the  amount  of  his  debt.  This  must,  as  a  rule,  be 
regarded  as  a  true  legacy,  and  not  as  a  release  of  the  debt.  It 
would  not  be  treated  as  a  release  by  a  court  of  equity,  as  there 
is  no  consideration.*  So  the  words,  "  I  return  A.  his  bond,"  were 
held  simply  to  constitute  a  legacy.^  It  would  therefore  lapse,  like 
other  legacies,  in  case  the  legatee  should  die  before  the  testator.^ 
If,  however,  the  testator  use  plain  words  of  release,  the  intention 
may  be  regarded,  and  the  debt  deemed  to  be  discharged.^  The  fact 
that  the  testator  is  a  parent  of  the  legatee  will  be  taken  into 
account.^  There  may  be  a  release  in  the  view  of  a  court  of 
equity,  though  not  so  regarded  in  a  court  of  law.^ 

1  2  H.  of  L.  Cas.  131  s.  c.  sul  nom.  thorp  v.  Moxom,  3  Atk.  580.  In  this  last 
Earl  of  Glengal  v.  Barnard,  1  Keen,  769.  case   the   court   laid   stress   on   the   word 

2  See  ante,  p.  624.  "  forgive."    See  also  Synge  v.  Synge,  L.  R. 

3  Weall  V.  Rice,  2  Russ.  &  M.  251,  267  ;  9  Ch.  App.  128. 

Richman  v.  Morgan,  1  Bro.  C.  C.  63.  8  Sibthorp  v.  Moxom,   supra  ;  Musket 

*  Tufnell  V.  Constable,  8  Sim.  69.  v.  Cliffe,  2  De  G.  &  Sm.  243. 
5  Maitland  v.  Adair,  3  Ves.  231.  »  Hedges  v.  Aldworth,   13  Ir.  Eq.  406, 

^  Toplis  V.  Baker,  2  Cox,  Eq.  118.  disapproving  a  dictum  to  the  contrary  in 

■^  South    V.    Williams,    12   Sim.   566  ;  Cross  v.  Sprigg,  6  Hare,  552. 

Elliot  V.  Davenport,  1  P.  Wms.  83  ;  Sib- 


TITLE    BY    ACT    OF    THE    LAW.  627 

Sometimes  the  testator  mentions  the  amount  of  the  debt,  which 
turns  out  to  be  erroneous ;  such  a  statement  in  general  binds  tlie 
legatee,^  though  if  the  error  leads  to  an  absurdity,  the  court  will 
ascertain  the  true  amount  of  the  debt,  and,  if  necessary,  direct  an 
accounting.'^ 

(4)  Legacies  charged  upon  land.  —  This  is  a  special  topic,  be- 
coming important  where  the  personal  estate  is  not  sufficient  to 
pay  the  legacies,  and  there  is  real  estate  belonging  to  the  testator. 
The  inquiry  then  is,  whether  the  land  is  not  to  be  used  to  make 
up  any  deliciency.  In  general,  it  cannot  be.  The  heir  or  devisee, 
as  the  case  may  be,  is  entitled  to  the  land,  and  the  legacies  are 
only  to  be  paid  from  the  personal  estate  as  far  as  it  will  go. 
There  may,  however,  be  evidence  of  intent,  to  be  gathered  either 
from  the  express  words  of  the  will,  or  by  reasonable  implication, 
that  the  land  is  to  be  resorted  to.  In  this  point  of  view  the  legacy 
is  said  to  be  charged  upon  the  land.  A  few  leading  rules  will 
now  be  stated. 

Rule  1.  A  legacy  may  be  "  charged  "  upon  land  by  implication. 
There  are  two  principal  cases  :  one,  where  the  question  arises 
between  the  legatee  and  the  owner  of  the  land,  considered  by 
itself;  the  other,  where  following  the  legacy  is  a  residuary  gift 
of  real  estate  and  personal  property  blended  together.  This  is 
technically  called  a  "  mixed  residue."  An  example  of  a  "  mixed 
residue  "  is  such  words  as  "  all  the  rest,  residue,  and  remainder 
of  my  real  and  personal  estate,  I  give,"  etc. 

In  the  first  class  of  cases  stated  in  this  rule,  the  question  is 
between  the  legatee  and  the  owner  of  the  land,  considered  by 
itself.  The  sole  question  is  the  intent.  This  will  be  inferred 
from  such  facts  as  these :  he  gives  his  wife  land,  and  then 
directs  her  to  pay  enumerated  legacies.^  No  particular  form  of 
words  is  necessary.  The  case  will  be  strengthened  by  special 
words,  such  as  a  devise  of  real  estate  "  subject  to  a  legacy,"  *  or  a 
devise  of  a  house  to  A.,  he  "paying  thereout"  one  hundred  dollars 
to  B.  at  a  specified  time.^  So  a  direction  to  trustees  to  pay  certain 
legacies'  has  been  held  to  constitute  a  charge.^  It  is  a  rule  that  a 
testator,  by  a  direction  to  sell  his  land  for  this  and  other  purposes, 
may  cause  the  proceeds  to  be  treated  as  personal  estate  (called 
the  doctrine  of  "equitable  conversion"),  and  thus  provide  a  fund 
from  which  legacies  are  to  be  paid." 

1  Robinson  v.  Bransby,  6  Madd.  348.  ^  Gallemore  v.  Gill,  2  Jur.  N.  s.  1178  ; 

2  In  re  Taylor's  Estate,  L.  R.  22  Ch.  2  Sm.  &  G.  158;  Preston  v.  Preston,  2  Jur. 
D.  495,  disapproving  of  In  re  Aird's  N.  s.  1040;  Rich  v.  Whitfield,  14  W.  R. 
Estate,  L.  R.  12  Id.  291.  907. 

3  Johnson  v.  Brady,  11  Ir.  Eq.  386.  ^  Field  v.  Peckett,  29  Beav.  568;  Bright 

4  Freeman  v.  Simpson,  6  Sim.  75.  v.  Larcher,  3  De  G.  &  J.  148. 

5  Seal  V.  Tichener,  2  Dick.  444. 


628  THE  LAW  OF  PERSONAL  PROPERTY. 

In  the  second  class  of  cases,  where  there  is  a  mixed  residue^  it  is 
a  well-settled  rule  of  the  common  law,  as  interpreted  by  the  English 
courts,  that  if  there  are  gifts  of  legacies,  and  then  of  the  "  rest 
and  residue,  real  and  personal,"  blending  the  whole  into  one  mass, 
the  legacies  are  "  charged  "  upon  the  land.^  This  principle  is  appli- 
cable, although  the  residuary  legatee  has  power  to  dispose  of  the 
residuary  property  "  in  any  manner  he  may  think  proper."  The 
meaning  is,  that  he  shall  so  dispose  of  it  as  not  to  interfere  with 
the  prior  burdens  to  which  the  property  is  subject.  The  principle 
also  applies,  although  there  is  a  direction  that  the  debts  and  lega- 
cies shall  be  paid  by  the  executors.^  The  meaning  of  the  word 
"  charge  "  is  not  that  the  legacies  are  necessarily  to  be  paid  from 
the  land,  but  that  the  land  may  be  resorted  to  in  case  the  personal 
property  is  insufficient.  It  is  a  general  rule  of  law  that  the  per- 
sonal estate  is  the  primary  fund  for  the  payment  of  debts  and 
legacies,  and  the  rule  prevails,  even  though  the  land  be  "charged" 
with  their  payment. 

The  principle  governing  all  these  instances  is  simply  this  : 
when  a  testator  treats  his  entire  estate  as  a  compound  fund,  or, 
in  the  language  of  the  cases,  as  "  one  mass,"  and  then  gives  enu- 
merated legacies,  and  in  the  end  the  residue  or  remainder^  the 
words  "  residue  "  and  "  remainder  "  mean  the  overplus  after  the 
enumerated  legacies  are  deducted,  where  the  personal  estate  is 
insufficient.  This  does  not  appear  to  be  a  mere  technical  con- 
clusion, but  to  be  founded  on  good  sense  and  correct  reasoning.^ 
The  rule  is  "  thoroughly  well  established,  having  been  acted  upon 
by  the  Court  of  Chancery  for  two  hundred  years."  * 

The  New  York  decisions  do  not  accept  in  full  the  principle 
adopted  by  the  English  courts.  The  mere  fact  that  "  the  residue 
of  the  estate  real  and  personal "  is  given  to  one,  while  enumerated 
legacies  are  given  to  others,  does  not,  in  New  York,  make  the 
latter  a  charge  upon  the  land.  There  must  be  further  evidence 
of  the  intent,  such  as  that  the  personal  estate  is  insufficient  when 
the  will  takes  effect,  or  that  there  is  a  direction  to  executors  to 
pay,  or  the  like.  Accordingly,  where  the  personal  estate  was 
ample  to  pay  the  legacies,  there  was  no  charge  on  the  land,  though 
nothing  had  been  set  apart  with  the  view  of  paying  the  legacies.^  (a) 

1  Greville  D.  Browne,  7  H.  of  L.  Cas.  689.  *  Per  Jessel,  M.  R.,  in  In  re  Brooke, 


2  In  re  Brooke,   L.   R.   3  Ch.  D.   630. 


supra. 


See  also  Wheeler  y.  Howell,  3  Kay&  J.  198.  &  Bevan  v.  Cooper,  72  N.  Y.   317,  and 

3  Greville  v.  Browne,  supra,  pp.  697,     cases   cited;  "Wiltsie  v.   Shaw,   100  N.  Y. 
700,  705.  191. 


(«)  Later  cases,    sustaining   the   New  trary  rule  is  approved  in  Turner  v.  Gibb, 

York  doctrine,   are  Brill  v.  Wright,   112  48  N.  J.  Eq.   526;    Bennett's  Estate,  148 

N.  Y.  129;  Briggs  v.  Carroll,  117  Id.  288;  Pa.  St.  139  ;    Knotts  v.   Bailey,  54  Miss. 

Morris  v.  Sickly,  133  Id.  456.     The  con-  235  ;  Cady  v.  Cady,  67  Miss.  425. 


TITLE    BY   ACT    OF   THE    LAW.  629 

In  other  cases,  having  special  facts,  "  charges  "  have  been 
adjudged.^ 

It  is  likely  that  the  decision  in  Wiltsie  v.  Shaw  will  lead  to  fine- 
spun distinctions  as  to  the  point  whether  there  is  sufficient  evi- 
dence of  intent.  The  English  rule,  on  the  other  hand,  is  clear, 
and  liable  to  but  few,  if  any,  exceptions.^ 

Rule  2.  An  express  charge  may  be  made  by  any  appropriate 
words.  The  word  "  charge  "  is  usually  adopted  by  professional 
draughtsmen.  There  may  be  a  charge  in  reference  to  some 
legacies,  and  not  as  to  others.  Difficult  questions  may  arise  as 
to  whether  the  words  importing  a  charge  will  be  carried  forward 
to  legacies  not  specifically  protected.  It  may  be  claimed  that  the 
expression  as  to  one  is,  by  implication,  an  exclusion  as  to  others. 
Cases  involving  this  point  are  cited  in  the  note.^ 

The  effect  of  a  charge  is  to  create  a  lien  or  incumbrance  upon 
the  land  while  it  remains  in  the  ownership  of  those  to  whom  it 
descended  or  was  devised.  In  case  of  a  sale,  a  distinction  is  made 
as  to  a  charge  of  debts  simply  as  against  an  heir,  and  to  a  charge 
of  both  debts  and  legacies  as  against  a  devisee.  In  the  former 
case  there  is  an  implied  power  in  the  executor  to  sell  the  land 
free  from  the  charge."*  It  will  be  observed  that  in  this  case  the 
title  to  the  land  descends  to  the  heir,  and  the  executors  represent 
the  owner  of  the  charge,  and  sell  to  settle  the  estate.  In  tlie 
latter  case  the  title  has  passed  to  the  devisee,  and  the  money  can 
only  be  raised  through  his  instrumentality.  There  is  no  implied 
power  bestowed  upon  him  to  sell  in  order  to  pay  the  legacies,^  though 
he  may  of  course  sell  his  interest,  subject  to  the  burden  of  the  lega- 
cies. It  would  seem  accordingly  to  be  a  good  objection  to  a  title 
derived  from  a  devisee  that  there  were  charges  subsisting  that 
were  not  paid  off,  and  it  appears  to  have  been  so  considered  in  a 
recent  case  in  New  York.^ 

Special  questions  will  arise  whether  a  certain  order  must  not 
be  followed  in  appropriating  lands,  such  as  to  take  first  lands 
specifically  devised  to  pay  debts,  and  next  such  as  descend  to 
heirs,  etc.  In  this  matter  the  intention  of  the  testator  governs. 
It  is,  however,  held  that  general  words  creating  a  charge  of  legacies 

1  Hoyt  V.  Hoyt,  85  N.  Y.  142;  Harris  States  Supreme  Ct.,  in  Lewis  v.  Darling, 
V.  Fly,  7  Paige,  421.     Extraneous  circum-     16  How.  U.  S.  1. 

stances   may  be   considered,  according   to  ^  Boyd   v.    Higginson,    5    Ir.   Eq.    97; 

these   cases,   but   this  can    only   be  done  Hensman  v.  Fryer,  L.  R.  3  Ch.  App.  420. 

when  the  words  are  doubtful.     Hensman  *  Shaw  v.  Borrer,  1  Keen,  559  ;  Ball  v, 

V.  Fryer,  L.  E.  3  Ch.  App.  420.  Harris,  8  Sim.  485  ;  Robinson  v.  Lowater, 

2  The  English  rule  is  adopted  in  Massa-  5  De  G.  M.  &  G.  272. 

chusetts  (Wilcox  v.  Wilcox,  13  Allen,  252)  ^  Newman  v.  Kent,  1  Mer.  240  ;  Wigg 

and  in  other  States  ;   also  in  the  United     v.  Wigg,  1  Atk.  382. 

e  Wiltsie  v.  Shaw,  100  N.  Y.  191. 


g30  THE  LAW  OF  PERSONAL  PROPERTY. 

only,  — e.g.,  "  on  all  mj  real  and  personal  estate,"— do  not,  unless 
there  is  some  evidence  of  intention  to  the  contrary,  include  land 
specifically  devised  to  another.^  The  principle  governing  the  case 
is,  that  the  testator,  having  given  a  particular  thing,  intends  that 
the  devisee  should  take  it  in  its  integrity,  and  without  derogation, 
and  cannot  be  supposed,  from  mere  general  words,  to  intend  to 
withdraw  it  from  a  purpose  to  which  he  has  already  apparently 
devoted  it. 

A  different  rule  prevails  where  the  charge  includes  both  debts 
and  legacies.  As  the  debts  clearly  bind  the  specifically  devised 
lands,  there  is  a  presumed  intention  that  the  legacies  mentioned 
at  the  same  time  should  also.^  Where  a  legacy  is  simply  charged 
upon  land  by  such  words  as  "  subject  to  the  payment,"  etc.,  the 
devisee  is  not  personally  bound  to  pay  it.  He  takes  the  land 
cum  onere,  and  that  is  all.^  It  is  otherwise  if  there  be  words 
in  the  will  from  which  a  promise  by  the  devisee  to  pay  can 
be  inferred  from  his  acceptance,  —  e.  g.,  if  he  be  directed 
to  pay.^ 

(5)  Void  legacies.  — A  void  legacy  is  not  the  same  as  a  lapsed 
legacy.  A  lapsed  legacy  is  in  its  own  nature  valid,  but  fails  to 
take  effect  owing  to  an  event,  such  as  the  death  of  the  legatee 
before  the  testator.  A  void  legacy  is  a  nullity.  This  invalidity 
may  happen  in  a  variety  of  modes,  but  principally  from  want  of 
capacity  on  the  part  of  the  testator  to  give,  or  from  a  like  inca- 
pacity of  the  legatee  to  receive.  A  legacy  may  also  be  void  by 
reason  of  illegality  or  fraud,  or  uncertainty  in  description,  etc. 

1.  Illegality.  An  important  instance  under  this  head  is  that 
of  "  remoteness,"  or  bestowal  of  property  to  vest  at  a  period  of 
time  beyond  that  allowed  by  the  rules  of  law.  This,  at  the  com- 
mon law,  is  beyond  the  lives  of  specified  persons  in  being,  and  a 
period  of  twenty-one  years  in  addition.  This  period  in  New^  York 
and  some  other  States  is  reduced  by  statute  to  two  specified  lives.^ 
A  legacy  transgressive  of  this  rule  is  void.  A  legacy  may  be  given 
to  an  unborn  child  of  specified  parents,  as  it  would  necessarily 
come  into  existence,  if  at  all,  within  the  legal  period.  The  same 
rule  applies  to  a  non-existing  corporation  in  other  respects  qualified 
to  take.^  In  the  common  law  the  period  of  twenty-one  years  may 
be  selected  by  a  testator,  without  reference  to  lives.     In  other 

1  Campbell  v.  M'Conaghey,  6  Ir.  R.  3  Jillard  .  Edgar,  3  De  G.  &  Sni.,  .'^)02 
Eq.  20  ;   Spoug  v.  Spong,   1  Dow.  &  CI.     and  cases  cited  on  p.  508. 

365 ;   s.  c.  3  Bligh,  n.  s.  84 ;    Courou  v.  4  Brown  v.  Knapp,  79  N.  Y.  136,  and 

Couron,  7  H.  of  L.  Cas.  168.  cases  cited  on  p,  143. 

2  Maskell  v.  Farringtou,  3  De  G.  J,  &         MR.  S.  773,  §  1  (8th  ed.  p.  2516). 

S.  338.  6  jjosg  y_  Rose,  4  Abb.  N.  Y.  App.  Dec. 

108. 


TITLE    BY   ACT    OF    THE    LAW.  631 

words,  it  may  be  taken  as  an  absolute  period.^  Thus,  a  testator 
might  lawfully  bequeath  property  to  a  charitable  corporation  to  be 
chartered  within  twenty-one  years  after  his  death.  In  New^  York, 
only  to  such  a  corporation  chartered  within  two  lives  of  persons 
whom  he  names,  —  e.  ^.,  two  of  his  executors.^  (a)  An  instance 
of  a  different  form  of  illegality  is  a  bequest  for  purchasing  the 
discharge  of  poachers  committed  to  prison  for  non-payment  of 
fines  for  violating  the  game  laws.^ 

2.  Fraud.  Some  instances  of  fraud  as  a  cause  of  invalidity  of 
legacies  may  be  noted.  One  is  where  the  object  of  the  testator  is 
to  dispose  of  his  property  so  as  to  hinder,  delay,  or  defraud  credi- 
tors.* Another  is  the  case  where  a  legacy  is  given  to  a  person  under 
a  particular  character  which  he  has  falsely  assumed,  and  which 
alone  can  be  supposed  to  be  the  motive  of  the  testator's  bounty. 
It  was  accordingly  adjudged  that  a  legacy  given  by  a  woman  to  a 
man  in  the  character  of  her  husband,  whom  she  supposed  and 
described  as  husband,  who  at  the  time  of  marriage  with  her  had 
a  wife  living,  was  void.^ 

3.  Uncertainty.  A  will  may  be  void  on  the  ground  of  uncer- 
tainty. The  meaning  of  this  is,  that  the  will  is  so  drawn  that  the 
intent  of  the  testator  cannot  be  ascertained  by  a  resort  to  the 
usual  rules  of  judicial  construction.  This  rule  is  of  special  force 
at  the  present  time,  when  statute  law  requires  wills  to  be 
in  writing.  The  intention  of  the  testator  must,  in  general,  be 
found  in  the  will  itself,  coupled  with  evidence  of  surrounding 
circumstances. 

4.  Want  of  capacity  to  bequeath.  This  defect  only  exists  in 
special  cases.  It  is  not  necessary  to  repeat  the  statements  already 
made  as  to  the  instances  of  infancy,  coverture,  and  undue  influence. 
Rules  of  law  sometimes  preclude  a  testator  who  possesses  full 
testamentary  capacity  from  making  bequests.  An  instance  is  a 
statutory  rule  in  New  York  that  no  person  having  a  husband, 
wife,  child,  or  parent,  shall,  by  his  or  her  last  will  and  testament, 
devise  or  bequeath  to  any  benevolent,  charitable,  literary,  scien- 
tific, religious,  or  missionary  society,  association,  or  corporation, 
in  trust  or  otherwise,  more  than  one-half  part  of  his  or  her  estate, 
after  the  payment  of  his  or  her  debts  (and  such  devise  or  bequest 

1  Cadell  V.  Palmer,  1  CI.  &  F.  372.  ^  Thrupp  v.  Collett,  26  Beav.  125. 

2  Burrill  v.  Boardman,  43  N.  Y.  254  ;  *  Coope  v.  Cresswell,  L.  R.  2  Eq.  106  ; 
Shipman  v.  Rollins,  98  N.  Y.  311 ;  Inglis    on  appeal,  L.  R.  2  Ch.  App.  112. 

V.  Trustees   of   Sailors'  Snug   Harbor,    3          ^  Kennell  v.  Abbott,  4  Ves.  302. 
Pet.  99. 

(a)  See  Cruikshank  v.  Home  for  the  Simonson,  126  N.  Y.  299,  307  ;  Longheed 
Friendless,    113    N.  Y.    337;    People    v.     ?;.  The  D.  B.  Church,  129  N.  Y.  211. 


g32  THE  LAW  OF  PERSONAL  PROPERTY. 

shall  be  valid  to  the  extent  of  one  half,  and  no  mure).i  This 
statute  has  been  the  subject  of  much  adjudication,  which  is 
referred  to  in  a  note.^ 

5.  Incapacity  of  the  legatee  to  take.  Corporations.  There  is 
an  important  distinction  between  the  general  capacity  of  a  corpor- 
ation,  on  the  one  hand,  to  take  real,  and  on  the  other,  personal, 
property  by  will.  Wills  of  real  estate,  conferring  the  legal 
title,  could  not  be  made  at  all  under  the  rules  of  the  common  law. 
They  were  introduced  by  the  Statute  of  Wills  in  the  reign  of 
Henry  VIII.  Corporations  were  excepted  from  this  statute,  and 
are  generally  not  authorized  in  the  American  statutes  to  take 
real  estate.  As,  however,  the  common-law  rule  did  not  apply 
to  trust  interests,  a  devisor  could  create  a  trust  in  his  own  favor, 
and  then  make  a  will  of  his  trust  estate.  These  refinements 
never  applied  to  wills  of  personal  property.  A  corporation,  like  a 
natural  person,  was  allowed  to  take  that  species  of  property,  unless 
in  some  way  restricted  by  statute.^  There  is  restrictive  legisla- 
tion upon  this  point  in  a  number  of  the  American  States.  New 
York  may  be  referred  to  as  an  example.  The  law  of  18G0 
(ch.  360)  has  already  been  mentioned,  which  limits  tlie  testator, 
as  to  corporations,  etc. 

More  important  still  is  the  earlier  legislation  of  1848,  intended 
exclusively  to  limit  the  capacity  of  corporations  formed  under  the 
general  law  of  that  year,  to  take  property  by  devise  or  bequest, 
unless  the  will  should  have  been  executed  at  least  two  months 
before  the  testator's  death.^  The  amount  which  could  be  devised 
or  bequeathed  under  this  statute  was  subsequently  increased  by 
various  acts  until,  in  1890,  it  was  enacted  that  charitable  corpor- 
ations, and  others  not  organized  for  business  purposes,  could  take 
and  hold  property  not  exceeding  in  value  three  million  dollars,  or 
property  yielding  a  yearly  income  not  exceeding  two  hundred  and 
fifty  thousand  dollars.  This  act  does  not,  however,  affect  corpora- 
tions already  having  power  to  take  and  hold  a  larger  amount.^(a) 

1  Laws  of  1860,  ch.  360  (Rev.  St.  8th  Drew  TheoL  Seminary,  95  N.  Y.  166.  See 
ed.  p.  2550).  ante,  p.  238. 

2  In  order  to  determine  whether  the  ^  Sherwood  v.  American  Bible  Societ}'', 
will  exceeds  the  prescribed  amount,  the  4  Abb.  N.  Y.  App.  Dec.  227;  and  cases 
whole  estate  must  be  treated  as  if  converted  cited  on  p.  231. 

into  money  at  the  time  of  the  testator's  *  Laws  of  1848,  ch.  319. 

death,  and  the  money  value  of  the  portion  ^  See  Laws  of  1848,  ch.  319,  §  6;  Laws 

given  ascertained,  and  if  the  one  half  is  of  1881,  ch.  641;  and  Laws  of  1889,  ch. 
not  exceeded,  the  will  is  valid.     HoUis  v.     191,  as  amended  by  Laws  of  1890,  chs. 

497  and  553. 

(a)  See  also  §  12  of  the  General  Corpor-  if  any  general  or  special  law  or  any  cer- 
ation  Law,  a.s  amended  by  ch.  400  of  the  tificate  of  incorporation  shall  limit  the 
Laws  of  1894.     It  is  here  provided  that     amount  of  property  a   corporation   other 


TITLE    BY    ACT   OF   THE    LAW.  633 

An  important  question  arose  in  connection  with  the  charter  of 
Cornell  University,  whether  the  distinction  recognized  in  Eng- 
land between  taking  and  holding  property  by  corporations  pre- 
vails in  New  York.  The  English  statutes  prohibiting  corporations 
from  taking  and  holding  lands  without  license  from  the  king, 
called  statutes  of  "  mortmain,"  were  so  construed  by  the  courts, 
that  an  unauthorized  acquisition  would  vest  in  the  corporation 
by  a  defeasible  title,  until  proceedings  were  taken  on  behalf  of 
the  sovereign  power  to  divest  the  title.  This  construction  is 
repudiated  by  the  New  York  Court  of  Appeals  as  to  acquisition 
by  devise  or  bequest,  so  that  a  gift  by  will,  beyond  the  authorized 
amount,  is  void  for  the  excess,  and  vests  no  title  whatever  in  the 
corporation.^ 

This  decision  was  affirmed  in  the  Supreme  Court  of  the  United 
States,  not  upon  the  main  ground,  which  was  held  not  to  present 
a  Federal  question  reviewable  by  that  court,  but  solely  upon  the 
ground  also  maintained  in  the  New  York  Court  of  Appeals,  that 
Cornell  University  held  property  exceeding  in  value  '13,000,000, 
which  was  the  amount  authorized  by  its  charter.^ 

Charities.  —  Special  rules  prevail  as  to  charitable  legacies. 
They  are  not  subject  to  the  doctrines  of  "remoteness"  as  an 
ordinary  legacy  is.  A  perpetual  fund  may  be  given  to  selected 
trustees  (not  incorporated),  who  may  have  power  to  fill  vacancies 
in  their  number,  and  thus  apply  the  income  from  time  to  time  to 
the  charitable  purpose.  A  similar  gift  may  be  made  to  a  charita- 
ble corporation.  The  whole  subject  thus  becomes  a  branch  of 
the  law  of  trusts,  enforceable  in  equity.  The  word  "  charitable  " 
is  not  used  in  the  popular  sense  of  a  gift  for  the  benefit  of  the 
poor,  but  embraces  purposes  of  general  public  utility,  extending 
to  the  rich  as  well  as  the  poor,  including  gifts  to  support  high- 
ways, institutions  of  learning  and  religion,  etc.  The  decisive 
test  is  "  public  utility."  Thus,  a  gift  to  the  Royal  Geographical 
Society,  whose  object  is  "  the  improvement  and  diffusion  of  geo- 
graphical knowledge,"  is  charitable ;  so  also  to  a  society  whose 
objects  were  to  "  improve  natural  knowledge."  ^ 

1  Matter  of  McGraw,    111   N.   Y.    66.  2  Cornell    University    v.     Fiske,     136 

See  also  Chamberlain  v.  Chamberlain,  43  U.  S.  152,  174,  175. 

N.  Y.  424,   439  ;     White  v.   Howard,  46  3  Beaumont  v.  Oliveira,  L.   R.   4  Ch. 

N.  Y.    144.     Accordingly,    the    heirs  or  App.  309,  313,  314,  and  cases  cited;  Trns- 

next  of  kin  may  raise  the  question,  111  tees  of  British  Museum  v.  White,  2  Sim. 

N.  Y,  108.  &  S.  594. 


tlian   a   stock    corporation    may   take    or  from  which  shall  be  five  hundred  thousand 

bold,  such  corporation  may  take  and  hold  dollars  or  less,  notwithstanding  any  such 

property  of  the  value  of  three  million  dol-  limitations, 
lars  or  less,  or  the  yearly  income  derived 


634  THE  LAW  OF  PERSONAL  PEOPERTY. 

It  was  at  one  time  supposed  by  some  that  this  subject  was 
statutory  in  its  origin  in  England,  and  accordingly  did  not  exist 
in  an  American  State,  unless  under  the  support  of  positive 
leo-islation.  The  act  commonly  referred  to  is  one  passed  in  the 
latter  part  of  the  reign  of  Queen  Elizabeth.^  This  doctrine  has 
been  overthrown  by  later  researches,  as  a  large  number  of  decrees 
of  the  Court  of  Chancery  made  before  that  date  has  been  col- 
lected, forming  a  body  of  law  upon  this  subject.  This  subject  is 
not  confined  to  legacies,  or  wills  of  real  estate,  but  includes  con- 
veyances of  land  as  well  as  of  personal  property.  The  courts 
following  the  Roman  law  favor  charities,  adopting  the  doctrine  of 
ey  pres  to  a  marked  extent,  in  order  to  uphold  them. 

The  general  law  of  "  charities  "  has  been  qualified  in  England 
by  statute.  At  the  time  of  the  Reformation  certain  gifts  previ- 
ously regarded  as  charitable  were  by  statute  declared  to  be  "  super- 
stitious" and  void.  This  legislation  introduced  the  doctrine  of 
"  superstitious  uses."  ^  This  theory  has  no  place  in  American 
law.  One  of  the  uses  declared  in  England  to  be  superstitious 
is  a  foundation  for  the  sustentation  of  a  "  chantry  priest "  to  say 
masses  for  the  souls  of  the  dead.^  This  rule  still  prevails,  not- 
withstanding the  act  of  23  &  24  Vict.  c.  134.4  (a) 

Another  important  English  statute  is  one  passed  in  the  9th  of 
Geo.  II.,  c.  36.  This  is  sometimes  called  a  statute  of  "  mort- 
main." (6)  This  is  not  an  accurate  expression,  since  a  mortmain 
act  is  directed  against  corporations  in  general,  restricting  the  right 
to  take  land  ;  the  statute  in  question,  on  the  other  hand,  is  directed 
solely  against  charitable  uses  in  land,  or  interests  in  land.  This 
act  is  purely  local  in  its  operation.  It  does  not  extend  to  the 
English  colonies,^  and  never  had  any  operation  in  this  country. 
The  object  of  the  statute  was  to  require  charitable  gifts  of  land, 
or  of  money  to  be  laid  out  in  land,  to  be  made  by  deed  executed 
twelve  months  before  the  death  of  the  grantor,  and  enrolled  in 
a  prescribed  manner.     The  result  was  that  there  could  be   no 

^  43  Eliz.  c.  4  (a.  d.  1601).  to  such  a  purpose   is  not  a  superstitious 

2  37  Hen.  VIII.  c.  4;  1  Edw.  VI.  c.  14.     use  in  Ireland.     Read  v.  Hodgens,  7  Ir. 

3  Atty-Gen'l  v.  Fishmongers  Co.,  5  M.     Eq.  17;  also  Id.  34,  n. 

&  C.  11 ;  West  V.  Shuttleworth,  2  M.  &  K.  5  Atty-Gen'l  v.  Stewart,  2  Mer.  143;  Mit- 

684;  Heath  v.  Chapman,  2  Drew.  417.  ford  v.  Reynolds,  1  Ph.  185;   Whicker  v. 

*  In  re  Blundell's  Trusts,  30  Beav.  360.  Hume,  1  De  G.  M.  &  G.  506. 
Such  a  bequest  or  appropriation  of  funds 


(a)  In  re  Elliott,  39  W.  R.  297.  date  and  amend  the  law  relating  to  lilort- 

(6)  This  act  was  for  the  most  part  re-  main  and  to  the   disposition  of  land  for 

pealed  by  the  Mortmain   and  Charitable  Charitable  Uses."     See  also  54  &  55  Vict. 

Uses   Act,    1888   (51   &  52  Vict.    c.  42).  c.  73,  and  55  Vict.  c.  11. 

The  purpose  of  this  act  is  "to   consoli- 


TITLE    BY   ACT    OF   THE   LAW.  635 

charitable  devise  of  land  (with  some  exceptions)  after  the  passing 
of  that  act.i  The  words  "  lands,  etc.,"  used  in  the  act  are  con- 
strued with  much  strictness,  including  mortgages,  money  charged 
on  land,  railway  bonds  secured  by  mortgage,  etc.^  Mere  railway 
debentures  are  not  included,  as  they  are  strict  personal  property, 
being  nothing  more  than  promises  to  pay  money .^  Leasehold 
property,  though  in  one  sense  personal  estate,  is,  for  this  purpose, 
land,  and  a  gift  of  it  falls  within  the  prohibition  of  the  stat- 
ute.^ A  distinction  for  the  purposes  of  the  act  is  taken  between 
pure  and  impure  personalty.  The  former  lies  entirely  without  the 
statute,  except  in  the  case  of  stock  in  the  public  funds,  the  latter 
is  within  the  prohibition.  The  statute  cannot  be  evaded  by  a 
direction  that  the  land  of  a  testator  be  sold  and  converted  into 
money .^  In  some  cases,  where  there  is  a  mixed  fund  of  "  pure 
and  impure"  personalty  given  to  a  number  of  objects,  some  of 
which  can  take  land  and  others  not,  the  court  will  so  distribute 
the  items  as  to  give  the  "  impure  personalty "  to  such  as  are 
authorized  to  take  and  hold  land.^ 

The  recent  New  York  decisions  have  made  large  inroads  into 
the  law  of  charitable  gifts  as  understood  in  England  or  in  a  State 
like  Massachusetts,  closely  following  the  common  law.  It  is  de- 
clared to  be  the  effect  of  the  statute  of  perpetuities  to  prohibit  the 
devotion,  even  of  personal  property,  to  charitable  uses  beyond  two 
lives,  and  that  such  devotion  can  no  more  be  made  indirectly  than 
directly,  as  it  is  in  fraud  of  the  law.  Accordingly,  a  gift  of  per- 
sonal property  to  three  persons  to  devote  the  income  during  their 
lives  to  a  specified  charitable  purpose,  was  declared  to  be  void.'^  (a) 
There  can  thus  be  no  charitable  gift  in  New  York  to  continue 
beyond  two  lives,  unless  made  to  a  corporation  having  statutory 
powers  to  take  and  hold  the  property.  Again,  the  New  York 
courts  do  not,  as  a  rule,  enforce  trusts  against  charitable  corpora- 
tions. They  are  treated  as  owners  of  the  property  conveyed  or 
devised  to  them,  rather  than  as  trustees  responsible  to  beneficia- 
ries designated  or  described  by  the  donor  or  testator.^  Finally, 
the  cy  pres  doctrine,  figuring  so  largely  in  the  works  on  equity 

1  Price  V.  Hathaway,  6  Madd.  304.  Church,   etc.  Soc.   v.  Coles,   1  Jur.  n.  s. 

2  Ashton  V.  Lord  Langdale,  4  De  G.  &     761. 

Sm.  402.  6  Wigg  y.  Xicholl,  L.  E.  14  Eq.  92. 

3  Holdsworth  v.  Davenport,  L.  E.  3  "^  Will  of  O'Hara,  95  N.  Y.  403.  The 
Ch.  D.  185;  Mitchell  v.  Moberly,  6  Id.  decisive  case  is  Holland  v.  Alcock,  108 
655;  Attree  v.  Hawe,  9  Id.  337.  N.  Y.  312,  in  which  the  English  law  of 

*  Johnstone  v.  Hamilton,  5  Giff.  30.  private  trustees  is  rejected.    See  also  Cott- 

6  Jones  17.  Williams,  Amb.  651;  lucorp.     man  v.  Grace,  112  N.  Y.  299. 

8  Wetmore  v.  Parker,  52  N.  Y.  450. 


(a)  See   also    Eead  v.    Williams,  125  N.  Y.  560. 


636 


THE  LAW  OF  PERSONAL  PROPERTY. 


as    a    proper    clement    in    construction,    has    been    practically 

abandoned.! (rtf)  .    t   •-,     i   i        ,        . 

Individual  legatees.  — l^hQ  (i^V^^^^l  ^^  ^^^  individual  legatee  to 
take  is  almost  unlimited.  It  is  immaterial  that  he  is  an  infant 
or  insane.  The  law  will  presume  acceptance  if  the  legacy  be 
beneficial.'  There  were  some  artificial  incapacities  in  the  old  law 
which  have  practically  disappeared  from  modern  law.  One  was, 
that  a  monk  in  a  convent  could  not  take  property.  This  rule 
could  not  now  be  applied  to  a  member  of  a  religious  brotherhood. 
In  the  same  way,  the  disability  arising  from  coverture  has  practi- 
cally disappeared.  In  one  or  two  of  the  States  {e.  g.,  New  York) 
a  person  sentenced  to  imprisonment  for  life  is  civilly  dead. 

Tins  rule  has  raised  a  question  as  to  his  power  to  take  and  hold 
property,  either  real  or  personal.  As  to  personal  property,  the 
correct  view  seems  to  be  that  he  cannot  take  it  at  all.  As  to  real 
estate,  the  prevailing  view  is,  that  while  he  cannot  take  it  at  all,  in 
case  he  is  a  professed  monk,  or  banished  from  the  country,  or  has 
abjured  the  realm,  he  can  in  other  cases,  although  civilly  dead,  take 


1  The  law  of  trusts,  as  applicable  to  the 
administration  of  charitable  funds  held  by 
corporations,  appears  to  have  substantially 
fallen  into  disuse  in  New  York.  The  at- 
torney-general's services,  as  representing 
the  State,  are  called  into  requisition  in 
England  in  such  cases  as  well  as  in  some 
of  our  States.  Such  a  proceeding  is  un- 
heard of,  at  least  in  late  years,  in  New 
York.  There  is  really  no  active  check 
upon  the  misappropriation  or  waste  of  the 
funds  by  corporate  action.  The  decisions 
of  the  courts  went  to  extreme  length  in 
regard  to  funds  held  by  religious  corpora- 
tions (Petty  V.  Tooker,  21  N.  Y.  267; 
Gram  v.  The  Prussia,  &c.  Ev.  Soc,  36  Id. 
161),  until  a  statute  was  passed  in  1875, 
(Laws  of  1875,  ch.  79,  §  4),  fastening  a 
trust  upon  church  property  which  a  court 


of  equity  was  specifically  authorized  to 
enforce.  It  is  safe  to  predict  that  similar 
legislation  will  ere  long  be  needed  to  rein- 
state the  old  beneficent  rules  in  regard  to 
other  charitable  corporations. 

The  subject  of  charitable  uses  may  be 
further  pursued  in  the  books  on  Equity 
Jurisprudence,  in  Moore's  Reading  on  the 
Statute  concerning  Charitable  Uses,  in 
Duke  on  Charitable  Uses,  Tudor  on  the 
same,  Boyle  on  Charities,  and  Shelford  and 
Highmore  on  Mortmain.  The  early  decrees, 
as  well  as  English  statutes,  are  collected  in 
Dwight's  Argument  in  the  Rose  Will  Case, 
2  vols.,  N.  Y.,  1863,  and  to  some  extent  in 
Mr.  Horace  Binney's  argument  in  the  Gir- 
ard  Will  Case.  Highly  valuable  decisions 
are  to  be  found  in  the  Massachusetts 
reports. 


(a)  Under  the  decisions  cited  in  the 
text  a  certain  designated  beneficiary  or 
beneficiaries  are  essential  to  a  valid  testa- 
mentary trust.  See  also  Tilden  v.  Green, 
130  N.  Y.  29.  This  rule  was  abolished, 
and  in  conseiiuence  the  law  in  New  York 
relating  to  trusts  materially  affected  by 
the  passage  of  a  late  law,  ch.  701,  Laws 
of  1893.  This  statute  provides  that  "  no 
gift,  grant,  bequest,  or  devise  to  religi- 
ious,  educational,  charitable,  or  benevo- 
lent uses,  which  shall  in  other  respects 
be   valid  under  the   laws  of  this   State, 


or  shall  be  deemed  invalid  by  reason 
of  the  indefiniteness  or  uncertainty  of  the 
persons  designated  as  the  beneficiaries 
thereunder  in  the  instrument  creating  the 
same."  The  legal  title  to  the  lands  or 
property  given,  vests  in  a  trustee  if  one  is 
named;  if  not,  then  in  the  Supreme  Court. 
The  Supreme  Court  is  given  control  over 
such  gifts  in  all  cases,  while  the  attorney 
general  represents  the  beneficiaries  with 
the  duty  of  enforcing  the  trust  by  proper 
proceedings. 


TITLE    BY   ACT   OF   THE   LAW.  637 

and  hold,  by  a  defeasible  title,  —  that  is,  until  the  State  proceeds 
to  take  the  property  from  him,  under  the  result  of  "  office  found."  ^ 

Another  case  in  which  a  devisee  or  legatee  cannot  take  is,  where, 
being  already  a  devisee  or  legatee  named  in  a  will,  to  prevent  revo- 
cation, he  murders  the  testator.  Under  such  circumstances  the 
devisee  or  legatee  shall  not  be  permitted  to  profit  by  his  own  fraud, 
or  to  take  advantage  of  his  own  wi-ong,  or  to  acquire  property  by 
his  own  crime.  To  uphold  the  provision  in  such  a  case  is  to 
violate  the  fundamental  maxims  of  the  common  law.^ 

The  rule  laid  down  in  Riggs  v.  Palmer  is  analogous  to  a  similar 
doctrine  in  the  Roman  law,  though  the  rules  of  that  system  permit 
other  instances  of  forfeiture  which  the  common  law  would  not 
follow.  Moreover,  in  the  Roman  law  the  forfeited  legacy  passes 
to  the  State  treasury  (fiscus),  and  this  may  have  been  the  reason 
for  including  many  instances  of  incapacity  to  hold  the  legacy .^ 

6.  The  effect  of  a  void  legacy.  —  A  void  legacy  is,  for  most  pur- 
poses, to  be  regarded  as  though  not  found  in  the  will.  A  residuary 
legatee  would,  therefore,  be  entitled  to  it  as  a  part  of  the  residue 
of  the  estate.  Still,  if  land  should  be  directed  by  a  testator  to  be 
sold  for  a  particular  purpose,  such  as  to  pay  a  legacy  which  fails, 
the  money,  though  realized,  will  be  considered  as  land  for  the 
purpose  of  determining  to  whom  it  belongs.* 

1  Accordingly,  it  has  been  said  that  an  ^  Riggs  v.  Palmer,  115  N.  Y.  506.  This 
attainted  person  "can  take  a  grant,  and  case  overrules  Preston  v.  Palmer,  42  Hun, 
grant  to  others  even  the  inheritance  which  388,  and  disapproves  the  reasoning  in 
on  office  found  would  escheat  to  the  crown  ;  Owens  v.  Owens,  100  N.  C.  240.  The 
and  the  rights  so  acquired  by  third  parties  last  case  upholds  the  right  of  dower  of  a 
may  be  the  subject  of  actions  in  Her  Majes-  wife  who  was  an  accessory  to  her  husband's 
ty's  courts."  Kynnaird  v.  Leslie,  L.  R.  1  murder,  on  the  ground  that  to  hold  other- 
C.  P.  389,  per  Willes,  J.  p.  400  ;  Avery  v.  wise  would  be  a  forfeiture  of  a  right  which 
Everett,  110  N.  Y.  317.  "Office  found "  is  the  laio  gives  to  a  surviving  wife,  the  only 
the  finding  of  certain  facts  by  a  jury  under  cause  of  forfeiture  mentioned  in  the  North 
a  proceeding  by  public  authority  before  a  Carolina  Code  being  the  wife's  adultery, 
proper  officer  or  court,  called  an  "inquest  accompanied  with  the  fact  that  she  is  not 
or  inquisition  of  office."  This  proceeding  living  with  the  husband  at  his  death, 
originated  in  the  early  common  law,  its  It  has  been  adjudged  by  the  Supreme 
main  object  being  to  vest  escheated  lands  Court  of  the  United  States  that  a  person 
in  the  Crown.  The  distinction  made  in  the  who  had  procured  a  policy  of  insurance 
text  seems  narrow  and  arbitrary.  It  is  upon  the  life  of  another,  payable  at  his 
believed,  however,  to  rest  upon  the  great  death,  and  had  then  murdered  him  to  make 
rule  of  )n(T^Ka  c/iarto  that  no  freeman  shall  the  policy  payable,  could  not  recover  on 
be  deprived  of  his  property  without  trial  the  policy.  N.  Y.  Mut.  Life  Ins.  Co.  v. 
by  jury,  and  this  is  obtained  by  the  prac-  Armstrong,  117  U.  S.  591. 
tice  of  "office  found."  In  the  excepted  ^  These  instances  are  collected  in  Mac- 
cases  of  monkhood  and  abjuration  the  keldey's  Roman  Law,  §  738,  Dropsie's  ed. 
ecclesiastical  court  had  jurisdiction,  and  (1883). 

in  that  of  banishment  there  was  a  record  *  Bective  v.  Hodgson,  10  H.  of  L.  Cas, 

of  it  in  the  action  of  the  highest  court  in  656. 
the  kingdom.  Parliament. 


g38  THE  LAW  OF  PERSONAL  PROPERTY. 

It  still  remains  to  consider  the  case  of  property  not  reached  by 
the  provisions  of  the  will,  such  as  a  residue  after  all  the  debts  and 
legacies  are  paid,  with  no  residuary  or  other  legatee  named.  In 
such  a  case  the  early  rule  was,  that  the  executor  was  entitled  to 
the  surplus.  He  was  practically  a  general  residuary  legatee  by 
implication.^  This  was  but  a  presumption  of  the  testator's  intent, 
aud  could  be  rebutted  by  a  contrary  intent  appearing  from  the 
instrument,  in  which  case  the  executor  would  be  held  in  equity 
to  be  a  trustee  for  the  next  of  kin.  Thus,  if  the  testator  professed 
to  dispose  of  his  whole  estate,  though  he  in  fact  failed  to  do  so, 
the  executor  will  be  a  trustee.^  This  view  will  be  strengthened  by 
a  request  to  executors  to  accept  the  office.^  In  some  cases  nice 
distinctions  were  taken  whereby  the  executors  took  the  surplus  as 
their  own,  and  free  from  any  trust.^  This  doctrine  was  in  the  end 
unsatisfactory,  and  the  rule  was  changed  in  England  by  statute, 
requiring  that  the  executor  should  not  claim  to  his  own  use  unless 
the  intent  of  the  testator  that  he  should  do  so  appeared  from  the 
will.^  The  rule  as  to  the  presumption  was  thus  reversed,  and  the 
executor  no  longer  takes  the  residue  by  implication.  The  whole 
subject  is  thus  a  matter  of  intention,  to  be  collected  from  the  terms 
of  the  will.^  If  there  be  express  words  of  trust,  the  case  is  per- 
fectly clear.  The  rule  has  also  disappeared  from  American  law, 
and  any  surplus  is  distributable  among  the  testator's  next  of 
kin,  in  accordance  with  the  Statute  of  Distributions. 

Section  II.  Succession  in  Case  of  Intestacy.  —  By  the  common 
law,  the  personal  property  of  an  intestate  vested  in  the  bishop,  or 
ordinary,  who  was  required  to  devote  it  to  pious  uses,  or,  in  other 
words,  to  the  purchase  of  masses  to  be  chanted  for  the  repose  of  the 
soul  of  the  deceased.  This  was,  in  a  sense,  to  appropriate  it  to  the 
use  of  the  intestate,  the  prayers  being  assumed  to  be  available  to  him 
in  the  world  where  he  was  supposed  to  be.  The  opposing  theory, 
advocated  by  Lord  Coke,  in  Hensloe's  Case,^  if  ever  plausible,  is 
no  longer  so,  since  the  publication  by  the  English  government  of 
the  ancient  authority  on  which  Lord  Coke  rests  his  opinion.  That 
in  no  respect  sustains  him.^  This  was  long  ago  perceived  by  John 
Selden,  who  refuted  Lord  Coke.  The  "  ordinary,"  or  bishop,  had 
jurisdiction  to  dispose  of  the  property  in  the  way  above  described, 
until  the  time  of  the  Protestant  Reformation,  when  the  saying  of 

1  Dawson  v.  Clark,  15  Ves.  409  ;  s.  c,  6  Williams  v.  Arkle,  L.  R.  7  H.  of  L. 
18  Id.  247.                                                        Cas.  606. 

2  Oldham  V.  Carleton,  2  Cox  Eq.  399.  ^  Coke's  Eeports,  Part  9,  36  h,  38  h. 

»  Giraiid  v.  Hanhury,  3  Mer.  150.  8  Rotuli   Literarum   Clausarum   (Close 

<  See  Barrs  v.  Fewkes,  2  Hem.  &  M.  60.     Rolls),  7  Henry  HI.  memb.  16,  p.  537. 
^  1  Wm.  IV.  c.  40.  "  y  .  F 


TITLE    BY   ACT    OF    THE   LAW.  639 

masses,  having  been  declared  by  Parliament  to  be  superstitious, 
was  no  longer  allowed  by  the  courts.  The  practical  result  was,  that 
the  administrator,  appointed  by  the  ordinary  under  the  autliority 
of  an  early  Englisli  statute,  took  the  whole  estate.  This  was  a 
point,  however,  much  in  controversy  between  the  probate  court 
and  the  common-law  courts.  The  probate  court  would  require 
distribution  among  the  next  of  kin,  and  require  a  bond  from  the 
administrator  to  that  effect.  The  common-law  court,  holding  that 
tlie  administrator  was  entitled  to  the  estate,  would  declare  the 
bond  void,  and,  where  the  circumstances  admitted  of  it,  would 
prohibit  the  probate  court  from  compelling  the  administrator  to 
account.  To  settle  this  controversy,  the  Statute  of  Distributions 
was  enacted,  providing  for  distribution  among  the  widow  and  next 
of  kin.i  This  statute  did  not  extend  to  the  estate  of  a  wife,  so  that 
the  husband,  if  there  be  no  supplementary  statute,  continues  to 
take  her  assets  as  at  the  common  law.  The  Statute  of  Distribu- 
tions was  borrowed  from  the  Roman  law,  as  found  in  the  118th 
Novel  of  Justinian. 

The  substance  of  Justinian's  legislation,  modifying  prior  rules, 
was  as  follows  :  Succession  was  made  to  depend  on  the  nature  of 
relationship,  whether  ascendant  or  descendant  or  collateral.  The 
claimants  could  be  arranged  into  five  classes  :  (1)  Descendants, 
all  of  whom  shared  in  the  estate  without  reference  to  degree  if  no 
living  ancestor  intervened.  If  all  the  descendants  were  of  the 
first  degree  (son  or  daughter),  the  estate  was  divided  equally 
(j)er  capita)  ;  if  not,  then  the  division  was  made  according  to 
"stocks"  {per  stirpes).  In  other  words,  the  division  was  made 
as  if  all  the  sons  or  daughters  not  living,  but  leaving  descendants, 
were  still  living.  The  shares  ot  any  that  were  dead  were  sub- 
divided among  their  descendants.  (2)  The  next  class  included 
ascendants.  In  this  case  the  nearest  ascendant  (father,  mother,  etc.) 
excludes  the  more  remote,  without  reference  to  sides.  Ascendants 
in  equal  degree  on  either  side  share  the  succession.  The  brothers 
and  sisters  of  the  whole  blood  are  members  of  this  class.  The 
sons  and  daughters  of  one  who  is  dead  represent  his  share,  but  the 
grandchildren  do  not  take.  The  mode  of  subdivision  among  the 
various  members  of  this  class  is  intricate,  and  unnecessary  for  the 
present  purpose  to  be  detailed.  (3)  There  being  no  members  of 
the  first  and  second  classes,  brothers  and  sisters  of  the  half  blood 
succeed.  The  rule  of  representation  is  the  same  as  among  the 
members  of  the  second  class.  (4)  The  next  class  includes  all 
other  collateral  relatives.  No  distinction  is  henceforth  made  be- 
tween relatives  of  the  whole  blood  and  of  the  half  blood.     They 

1  Edwards  v.  Freeman,  2  P.  Wms.  435,  447. 


540  THE  LAW  OF  PERSONAL  PKOPERTY. 

take  the  succession  according  to  the  proximity  of  relationship. 
Uncles  and  aunts,  and  their  descendants,  would  be  the  nearest 
of  kin.     Special  rules  govern  the  relation  of  husband  and  wife. 

The  English  Statute  of  Distributions  is  not  an  exact  reproduc- 
tion of  Justinian's  Novel,  but  it  closely  resembles  it.  They  are 
alike  in  making  the  classes  of  successors  depend  upon  nearness  of 
relationship;  in  the  doctrine  of  representation,  not  carried  in 
either  case  in  collaterals  beyond  brothers'  and  sisters'  children, 
and  in  making  certain  distinctions  as  to  the  half  blood.  So  in 
the  American  States,  the  Justinian  legislation  has  had  large 
influence.  Great  stress  was  laid  by  the  Roman  law  upon  an 
equality  of  advantages  among  the  members  of  the  respective 
classes.  The  same  rule  was  applied  as  to  land.  From  this  the 
common  law  widely  departed  in  the  doctrine  of  primogeniture,  A 
further  rule  in  the  direction  of  equality,  in  Roman  law,  is  the 
doctrine  of  "  collation  of  goods."  This  came  into  the  common 
law  in  the  distribution  of  the  personal  property  of  an  intestate, 
being  known  as  the  doctrine  of  "  advancement."  By  "  collation  " 
is  meant  the  duty  of  one  of  several  distributees  to  bring  into  the 
common  fund  such  advances  or  gifts  as  were  made  to  him  in  his 
lifetime  by  the  intestate,  or,  what  is  equivalent,  to  submit  to 
be  charged  with  such  advances  as  a  part  of  his  share  in  the 
succession. 

Advancements.  —  (1)  To  desceyidants.  —  This  word  is  used  in  a 
variety  of  senses  in  law.  It  is  only  proposed  here  to  consider  it 
in  connection  with  the  Statute  of  Distributions.  It  is  a  settled 
rule  that  if  one  of  the  shai-e-takers  under  that  statute  has  received 
from  a  parent,  or  from  one  standing  in  the  place  of  a  parent, 
something  to  establish  him  in  life,  or  a  so-called  "  provision,"  he 
must  "  collate  "  the  amount  so  received  before  taking  his  share  in 
the  intestate's  estate.  The  English  equivalent  expression  is 
"  hotchpot."  Sometimes  there  is  a  clause  in  a  will  providing  for 
"  collation."     This  is  otherwise  called  a  "  hotchpot  clause."  ^ 

^  Section   5   of   the    Statute    of   Dis-  testate  in  his  lifetime,  by  portion  or  por- 

tributions,  (22    &    23    Car.     II.    c.    10)  tions,  equal  to  the  share  which  shall  by 

is  as  follows:     "One-third    part    of   the  such  distribution  be  allotted  to  the  other 

suryjlusage  (after  payment  of  debts)  to  the  children  to  whom  such  distribution  is  to 

■wife  of  the  intestate,  and  all   the  residue  be  made;  and  in  ease  any  child,  other  than 

by  equal    portions,    to    and    amongst  the  the  heir  at  law,  who  shall  have  any  estate 

children  of  such  persons  dying  intestate,  by   settlement  from  the  said  intestate,  or 

and  such  persons  as  legally  represent  such  sliall  be  advanced  by  the  said  intestate  in 

children,  in  case  any  of  the  said  children  his  lifetime,  by  portion  not  equal  to  the 

be  then  dead,    other  than  such  child   or  share    which    will    be  due    to  the   other 

children  (not  being  heir  at  law)  who  shall  children  by  such  distribution  as  aforesaid, 

have  any  estate  by  the  settlement  of  the  then    so    much  of    the  surplusage  of  the 

intestate,  or  shall  be  advanced  by  the  in-  estate  of  such  intestate,  to  be  distributed 


TITLE    BY   ACT    OF    THE   LAW.  641 

The  principle  on  which  the  doctrine  of  advancement  rests  is, 
that  as  the  aim  of  the  statute  is  to  make  the  children's  portions 
equal,  any  i)ajment  made  by  a  father  out  of  the  common  fund  for 
a  particular  purpose,  at  the  son's  desire,  if  in  considerable  amount, 
must  be  made  up  before  the  latter  may  participate  in  the  distri- 
bution. The  payment  is  the  material  thing.  The  court  does  not 
look  to  the  application  of  the  money. ^  In  a  recent  case,  an 
advancement  was  defined  to  be  a  sum  of  money  given  by  a  parent 
to  establish  a  child  in  life,  or  to  make  a  provision  for  a  child.  In 
this  case  some  eight  particular  inquiries  were  put  to  the  court. 
The  following  were  held  to  be  advancements :  admission  fee  paid 
to  one  of  the  Inns  of  Court  of  a  child  intended  for  the  Bar ;  price 
of  a  commission  of  one  entering  the  army  ;  price  of  the  outfit  also ; 
price  of  plant  and  machinery  to  start  a  child  in  business. 

The  following  were  not  deemed  to  be  advancements :  payment 
for  instruction  to  a  special  pleader  in  the  case  of  one  intended  for 
the  Bar,  —  this  was  regarded  rather  as  preliminary  education  ; 
passage-money  of  an  officer  and  his  wife  going  to  India  to  join  a 
regiment ;  payment  of  debts  incurred  by  an  officer  in  the  army ; 
payment  to  a  clergyman  to  assist  in  housekeeping.^  It  would  seem 
that  in  the  third  case  there  would  be  an  advancement  if  the  pay- 
ment of  the  debts  was  necessary  to  his  continuance  in  the  army.^ 

The  subject  of  advancement  in  cases  of  intestacy  is  fully  recog- 
nized in  this  country,  and  is  extended  to  real  as  well  as  personal 
estate,  there  being  no  such  exception  as  to  the  "  heir  at  law  "  as 
is  found  in  the  English  Statute  of  Distributions.  The  phraseology 
of  the  statutes  must  be  considered,  as  it  is  likely  to  vary  to  some 
extent  from  the  English  statute.  There  are  two  such  statutes  in 
New  York,  which  must  be  construed  together.^  One  concerns  the 
case  where  the  intestate  leaves  no  real  estate,  and  the  other  where 
he  does  leave  it.^  (a)  The  word  "  children,"  as  used  in  the  former 
statute,  is  equivalent  to  "  descendants."  So  that  the  rule  of 
advancements  to  a  child  may  be  invoked  by  a  grandchild  entitled 
to  a  share  in  the  estate.^ 

to    such    child    or   children    (as  were   so  i  Boyd  v.  Boyd,  L.  R.  4  Eq.  305. 

advanced,  etc.),  as  shall  make  the  estate  of  2  Taylor  v.  Taylor,  L.  R.  20  Eq.  155. 

all  the  said  children  to  be  equal  as  near  as  ^  Boyd  V.  Boyd,  supra. 

can  be  estimated."     Then  follows  a  clause  *  Beebe  v.  Estabrook,  79  ISf.  Y.  246. 

to  the   effect  that  the  heir  at  law  should  ^  2  R.  S.  97,    §§  76-78;   1  R.   S.  754, 

not  be  obliged  to  bring  his  land  derived     §§  23-26. 

from  the  intestate  into  hotchpot.     This  is  ^  Beebe  v.  Estabrook,  supra. 

not  applicable  to  descents  in  this  country. 

(a)  See  ch.  686,  of  the  Laws  of  1893,  Statutes  concerning  the  distribution  of  an 
amending  §  2733  of  the  Code  of  Civil  Pro-  estate  consisting  wholly  of  personal  prop- 
cedure,  and  embodying  therein  the  provis-  erty  where  a  child  has  been  advanced  by 
ions  formerly   contained   in    the    Revised     the  decedent. 

41 


g42  THE  LAW  OF  PERSONAL  PROPERTY. 

Advancements  depend,  in  principle,  upon  the  intentiou  of  the 
intestate,  ^'hich  may  be  shown  from  extraneous  sources,  such  as 
entries  in  his  bocks.  Where  there  is  no  specific  evidence  of 
intention,  a  presumption  is  raised  that  the  money  paid  is  or 
is  not  an  advancement  according  to  the  principles  derived  from 
the  English  cases  already  cited. 

(2)  To  a  wife.  —  The  Statute  of  Distributions  gives  a  part  of  the 
intestate's  property  (one  third)  to  a  wife.  This  third  may  be 
received  by  way  of  advancement  in  such  a  manner  as  to  disentitle 
her  from  claiming  her  "thirds."  This  point  resembles  a  rule 
in  the  law  of  dower  of  real  estate.  There  may  be  a  settlement, 
for  example,  so  made  as  to  require  a  wife  to  choose  or  "  elect " 
whether  she  will  take  the  provision  in  the  settlement,  or  the 
amount  allowed  by  the  rule  of  law.  The  discussion  is  now  confined 
to  cases  of  intestacy,  though  a  similar  question  may  arise  under  a 
husband's  will,  as  to  whether  the  wife  is  bound  to  elect. 

The  word  "  thirds,"  used  in  a  settlement  or  will,  is  not  con- 
fined to  real  estate,  but  is  a  general  expression  including  the 
interest  of  a  widow  in  any  of  her  husband's  property.  It  may, 
accordingly,  include  the  share  of  personal  property  coming  to  the 
wife  in  case  of  intestacy.^  Whether  the  settlement  deprives  the 
wife  of  her  share,  is  purely  a  question  of  construction.  The  court 
will  adopt  a  reasonable  construction  of  the  words  used.  Where 
the  language  was,  that  a  jointure  was  in  full  bar  and  satisfaction 
of  any  dower  or  "  thirds  "  which  she  could  or  might  claim  at  com- 
mon laiv  in  the  estates  real,  joer-sowaZ,  or  freehold  of  her  intended 
husband,  it  was  held  that  though  she  did  not  claim  in  the  personal 
estate  by  "  common  law  "  in  the  technical  sense,  the  fair  meaning 
of  that  expression  was  "  general  law,"  and  that  she  was  barred.^ 
It  will  aid  that  construction  if  the  settlement  was  based  to  some 
extent  upon  the  husband's  personal  estate.^ 

Domicile  as  affecting  the  distribution  of  the  estate  of  an  intes- 
tate. —  There  are  two  principal  questions  to  be  considered. 
First.  By  what  law  is  it  determined  that  a  person  dies  intestate. 
Second.  By  what  law,  in  case  of  intestacy,  is  his  personal  prop- 
erty to  be  distributed.  With  respect  to  the  first  question,  it  may 
be  said  that  the  fact  of  intestacy  is  governed  by  the  rules  prevail- 
ing in  the  law  of  his  domicile  at  the  time  of  his  death.  This  rule 
may  be  modified  by  statutes.  The  reason  for  it  is  plain.  Assume 
that  the  validity  of  any  will  that  he  may  make  is  to  be  determined 

1  Thompson  v.  Watts,  2  Johns.  &  H.  the  word  "personal"  was  not  used  there, 

^^1-  &nd  the  phrase  "common  law  "  was  with- 

-  Gurly  V.  Gurly,  8  CI.  &  F.  743  (House  out  (lualitication. 
of  Lords).     The  case  of  Colleton  v.  Garth,  3  Thompson  v.  Watts,  supra;   Davila 

6  Sim.  19,  was  decided  the  other  way ,  but  v.  Davila,  2  Vern.  724. 


TITLE    BY   ACT   OF   THE    LAW.  643 

by  the  law  of  his  domicile,  etc.,  and  it  follows  as  a  necessary  con- 
sequence that  the  result  of  testacy  or  intestacy  must  depend  upon 
the  fact  whether  the  testator  left  a  valid  will.^  (a) 

Concerning  the  distribution  of  the  estate,  it  is  a  general  rule 
that  this  must  also  follow  the  law  of  the  domicile,  unless  there  be 
opposing  statutes  in  the  State  where  the  property  happens  to  be 
situated.^  This  rule  means  the  law  of  the  domicile  at  the  time  of 
death,  and  does  not  include  any  change  in  the  law  of  the  domicile 
after  death.^ 

Section  III.  Executors  and  Administrators.  —  Having  con- 
sidered the  two  ways  of  acquiring  title  by  succession,  it  now 
remains  to  speak  of  the  administration  and  settlement  of  estates, 
and  also  of  their  distribution,  according  to  the  principles  of  suc- 
cession heretofore  discussed. 

The  rules  of  law  governing  executors  and  those  governing 
administrators  have  a  general  similarity,  and  will  be  treated 
under  one  title.  There  are,  however,  certain  important  points  of 
difference  which  must  be  pointed  out.  These  differences  concern 
especially  the  appointment  and  qualification  of  executors  and 
administrators  to  office,  and  these  will  now  be  mentioned. 

Before  entering  on  the  duties  of  administration,  an  executor 
receives  from  the  probate  court  "  letters  testamentary,"  constitut- 
ing evidence  of  authority  to  proceed  and  settle  the  estate.  These 
letters  do  not  issue  until  after  the  Avill  has  been  proved. 

This  evidence  is  for  most  purposes  conclusive  ;  so  that  the 
validity  of  the  probate  could  not  be  questioned  in  an  action 
brought  by  or  against  the  executor.  The  only  recourse  is  to  ap- 
peal from  the  decree  of  the  court  admitting  the  will  to  probate. 
A  single  illustration  will  suffice.  Should  the  executor  bring  an 
action  on  a  note  found  among  his  testator's  assets,  the  debtor 
would  not  be  allowed  to  show  in  defence  that  the  letters  testa- 
mentary ought  not  to  have  been  issued."*  The  decree  does  not, 
however,  conclusively  establish  the  domicile  of  the  testator.  A 
court  of  equity  has  in  general  no  power  to  set  aside  a  probate, 
unless  obtained  by  fraud.^     This  does  not  include  fraud  in  the 

1  Moultrie  v.  Hunt,  23  N.  Y.  .394.  *  Whicker  v.   Hume,   7  H.   of  L.  Cas. 

-  Stanley  v.  Bernes,  3  Hagg.  Ecc .  373  ;  124. 

Doglioni  v.  Crispin,  L.  R.  1  H.  of  L.  Cas.  ^  Barnesley  v.  Powell,  1  Ves.  Sr.  284, 

301.  and  even  in  that  case  with  great  caution  ; 

3  Lynch  v.  Gov't  of  Paraguaj^,  L.  R.  2  Ryves  v.  Duke  of  Wellington,  9Beav.  579, 

P.  &  D.  268.  599. 


(a)  Cross  v.  United  States  Trust  Co.,  there,  will  be  upheld,  even  though  invalid 

131  N.  Y.  330;  Dammert  v.  Osborn,  140  in  the  testator's  domicile.    Hope  v.  Brewer, 

N.  Y.  30.     But  it  has  been  held  that  a  136  X.  Y.  126.     See  also  Chamberlain  v. 

trust  created  by  will,  to  be  administered  Chamberlain,    43  N.  Y,    424  ;   Matter  of 

by  trustees  in  a  foreign  country  and  valid  Huss,  126  Id.  537. 


644  THE  LAW  OF  PERSONAL  PROPEKTY. 

execution  of  the  will.^  Where  parties  agree  that  a  will  shall  not 
be  proved,  a  court  of  equity  may  enforce  the  agreement,  and 
prevent  probate.^ 

The  letters  testamentary  cannot  be  used  to  recover  property  in 
a  foreign  country  or  another  State  of  the  Union.^  (a)  The  execu- 
tor may  assign  to  another,  who  may  bring  the  action.  As  a  usual 
rule,  a  purchaser  from  the  decedent  is  not  bound  to  pay  the  pur- 
chase money  until  the  will  is  proved  and  letters  issued,  as,  until 
that  time,  the  executor  cannot  give  complete  indemnity.* 

I.  Distinctions  peculiar  to  executors.  —  (1)  An  executor  is  not 
in  general  bound  to  give  bonds  for  his  fidelity,  on  the  principle 
that  as  he  was  trusted  by  the  testator,  he  may  properly  be  trusted 
by  the  court.     In  special  cases,  bonds  may  be  exacted.^ 

(2)  The  executor's  title  dates  from  the  testator's  death.  The 
administrator's  title  dates  from  appointment,  though  after  ap- 
pointment it  will  for  some  purposes,  by  a  legal  fiction,  relate 
back  to  the  death. 

(3)  The  executor,  where  there  is  no  statute  to  the  contrary, 
may  by  will  bequeath  his  executorship  to  his  executor.  On  the 
other  hand,  on  the  death  of  a  sole  administrator  there  must  be 
a  new  appointment. 

(4)  Executor  de  son  tort.  There  is  a  peculiar  rule  in  the  com- 
mon law  that  if  one,  without  being  appointed  executor,  interferes 
with  the  management  of  a  decedent's  estate,  he  may  be  treated  as 
an  executor,  and  will  be  precluded  from  denying  that  he  is  such. 
He  may,  however,  discharge  himself  by  turning  over  to  the  right- 
ful executor  any  property  in  his  hands  before  action  is  brought 
against  him.^  Such  a  person  is  subject  to  all  the  liabilities,  but  is 
entitled  to  none  of  the  privileges  of  an  ordinary  executor.'''  He 
may,  accordingly,  be  sued  by  a  creditor  of  the  estate.^  A  similar 
rule  is  applied  to  one  who,  having  been  appointed  executor,  does 
not  prove  the  will.^  The  doctrine  of  executorship  de  son  tort 
does  not  apply  to  goods  received  in  a  foreign  country .^^  (5)     This 

1  Melwish  v.  Milton,  L.  R.  3  Cli.  D.  27.  '^  Carmicliael  v.  Carmichael,  2  Ph.  101, 

2  Wilcocks  V.  Carter,  L.  R.  10  Ch.  App.     103. 

440.  8  Coote  V.  Whittington,   L.  R.  16  Eq. 

3  Scott  V.  Bentlej',  1  Kay  &  J.  281.  534. 

*  Newton  v.  Met.  R'way  Co.,  1  Dr.  &  9  In  re  Lovett,  L.  R.  3  Ch.  D.  198. 

Sm.  583.  1"  Beavan  v.  Lord   Hastings,  2  Kay  & 

^  This  matter  is  regulated  by  statute.  J.  724. 
«  Hill  V.  Curtis,  L.  R.  1  Eq.  90. 


(a)  See  also  Petersen  v.  The  Chemical  Gilman,  54  Me.  453.     So,  at  common  law, 

Bank,  32  N.  Y.  21  ;  Stone  v.  Scripture,  4  an  executor  cannot  be  sued  outside  of  the 

Lans.  186  ;    Schluter  v.    Bowery  Savings  State  or  country  where  he  was  appointed. 

Bank,  117  N.  Y.  125  ;  Wilkins  v.  Ellett,  9  Lyon  v.  Park,  111  N.  Y.  350. 

"Wall.  740  ;  s.  c.  108  U.  S.  256  ;  Gilman  v.  (b)  Of.  Emery  v.  Berry,  28  N.  H.  473. 


TITLE   BY   ACT   OF   THE   LAW.  645 

species  of  executorship  has  been  abolished  in  some  States  ;  and 
the  "  wrongful  executor  "  simply  made  a  trespasser,  and  liable  for 
his  conduct  in  an  action  of  trespass. ^  The  old  rule  was  more  con- 
Tenient,  as  it  enabled  the  owners  of  the  estate  to  hold  him  liable  on 
an  accounting  in  equity.^ 

(5)  Special  rules  apply  where  one  appointed  an  executor  is 
under  a  disability.  In  the  case  of  an  infant,  an  administrator  is 
appointed  to  manage  the  estate  during  the  minority .^  A  married 
woman  acting  as  executrix  involves  her  husband  in  liability  if  she 
wastes  the  estate  during  their  joint  lives.'^  The  husband  also 
stands  in  a  fiduciary  relation  to  the  estate.^  The  liability  of  the 
husband  must  be  understood  at  the  present  time  as  subject  to  the 
changes  produced  in  the  law  of  any  State  by  the  statutes  enlargnig 
the  legal  capacity  of  married  women. 

II.  Distinctions  aijplicahle  to  administrators.  —  Administra- 
tors are  appointed  by  the  probate  court  to  settle  a  decedent's 
estate,  either  when  there  is  no  will,  or,  if  there  be  a  will,  when 
there  is  no  executor.  The  appointment  is  made  by  the  issuance 
of  "  letters  of  administration "  to  the  person  entitled  thereto, 
upon  his  filing  a  bond  prescribed  by  law. 

Administration  is  of  two  classes, —  general  and  hmited.  The 
first  is  the  ordinary  case.  Limited  administration  is  granted  under 
a  variety  of  instances.  Limited  administrators  are  either  (1)  with 
the  will  annexed  (^cum  testamento  annexo)  ;  (2)  de  bonis  nan; 
(3)  durante  absentia;  (4)  durante  minore  cetate ;  (5)  pendente  lite. 

(1)  Cum  testamento  annexo.  This  case  occurs  where  there  is 
no  executor,  either  by  reason  of  death,  renunciation,  or  other 
cause.  Administration  is  then  committed  to  some  person  entitled 
by  law,  who  must,  in  settling  the  estate,  follow  the  directions  of 
the  will.  Such  an  administrator  has  the  same  general  powers  as 
an  executor.  A  point  of  difficulty,  however,  is  whether  he  can 
execute  a  special  trust  devolved  upon  the  executor.  The  better 
opinion  is,  that  he  can,  except  where  the  testator  has  granted  dis- 
cretionary powers  to  his  executor,  in  which  case  he  cannot. 

(2)  Be  bonis  non.  This  expression  refers  to  the  case  where 
an  original  administrator  has  died  or  became  incapaciated  without 
fully  settling  the  affairs  of  the  estate.  In  this  case  a  supplemen- 
tary administrator  is  appointed  to  finish  the  business,  or  to  admin- 

1  See  in  New  York  2  E.  S.  449,  §  17.  been  accepted  with  the  husband's  consent. 

2  Sharland  v.  Mildon,  5  Hare,  469.  Adair  v.  Shaw,  1  Sch.  &  Lef.  243,  266  ; 

3  Until  the  enactment  of  38  Geo.  III.  Williams  on  Executors,  7th  ed.  pp.  1836, 
c.  87,  an  infant  could  act  as  executor  on  1837.  See  also  Soady  v.  TurnbuU,  L.  R. 
arrivingat  the  age  of  seventeen.    Williams  1  Ch.  App.  494. 

on  Executors,  7th  ed.  p.  231.  6  Re  Peperell,  27  W.  R.  410. 

*  The  executorship  is  presumed  to  have 


g^g  THE  LAW  OF  PEESONAL  PROPERTY. 

ister  upon  the  estate  so  far  as  it  has  not  been  already  administered 
(de  bonis  non  administratis). 

(3)  Durante  absentia.  This  case  refers  to  an  appointment 
while  an  executor  is  abroad.  The  object  is  to  provide  a  person 
who  may  be  a  party  to  a  suit  in  equity,  and  represent  the  estate. 
Should  the  executor  return  in  the  progress  of  the  suit,  he  is  sub- 
stituted in  place  of  the  administrator.^  This  appears  to  have 
originated  in  statute  .^ 

(4)  Durante  minore  estate.  This  applies  to  the  case  of  a 
minor.  Such  an  administrator  is  an  ordinary  administrator,  ex- 
cept that  his  office  terminates  when  the  executor  attains  majority .^ 
The  administration  then  ceases,  and  a  suit  begun  by  the  adminis- 
trator cannot  be  continued,  but  must  be  commenced  anew,  unless 
the  case  has  reached  judgment. 

(5)  Pendente  lite.  The  object  of  such  an  administration  is  to 
secure  the  property  while  a  suit  is  pending  concerning  disputed 
wills  or  the  right  to  the  office  of  administrator.  Such  a  person 
resembles  a  receiver  appointed  by  a  court  of  equity.  His  duty 
is  to  protect  the  fund  rather  than  to  administer  upon  the  estate. 
Accordingly ,  if  holding  in  the  case  of  a  litigation  concerning  a 
will,  he  ought  not  to  pay  legacies.*  A  person  of  this  character 
is  in  some  States  termed  a  collector,  (a) 

In  addition  to  the  foregoing  there  may  be  mentioned  the  case 
where  the  person  appointed  executor,  or  who  is  entitled  to  admin- 
istration, is  of  unsound  mind,  though  not  so  declared  by  the  courts. 
An  administrator  durante  animi  vitio  may  then  be  appointed.^ 

The  classes  of  persons  from  whom  administrators  are  to  be 
taken,  have  long  been  established  by  law.  The  principal  change 
in  modern  times  is,  that  the  membership  of  the  classes  has  been 
enlarged,  and  the  duties  of  the  probate  court  more  strictly  de- 
fined. The  statutes  of  the  respective  States  must  be  examined 
for  details. 

The  principles  upon  which  the  selection  of  administration  has 
been  made  to  rest  are,  first,  proximity  of  relationship ;  second, 
interest  in  the  estate,  —  that  is,  the  relation  of  debtor  and  cred- 
itor ;  and  third,  the  interest  of  the  State,  to  be  represented  by  one 
of  its  officers.  Those  of  the  first  and  second  classes  may  renounce 
their  rights,  whereupon  the  office  may  come  to  the  third  class. 

1  Rainsford  v.  Taynton,  7  Ves.  460.  *  Adair  v.  Shaw,    1    Sch.  &  Lef.  243, 

2  38  Geo.  III.  c.  87.  254. 

3  In  re  Cope,  L.  R.   16  Ch.    D.   49  ;         5  Ex  parte  Evelyn,  2  M.  &  K.  3. 
Stubbs  V.  Leigh,  1  Cox  Eq.  133. 

(a)  Such  an  officer  in  New  York  is  now  called  a  temporary  administrator.  See 
Code  of  Civ.  Pro.  §§  2670-2683. 


TITLE   BY   ACT    OF   THE    LAW.  647 

A  grant  of  letters  of  administration,  even  though  ex  parte,  is 
conclusive  evidence  of  the  facts  necessary  to  be  shown  in  order  to 
obtain  it, —  e.  g.,  that  the  administrator  is  next  of  kin.  It  is  a 
judicial  act.  An  action  in  equity  cannot  be  brought  to  rescind  the 
letters  on  the  ground  that  the  necessary  facts  do  not  exist.  The 
correct  remedy  is,  to  apply  in  the  probate  court  to  have  the  letters 
recalled  or  revoked. ^ 

An  administrator,  like  an  executor,  cannot  bring  an  action  in 
another  State  or  country  without  taking  out  letters  of  administra- 
tion there,  called  "  ancillary  letters."  ^  The  appointment  has  only 
a  local  effect.^  This  rule  does  not  apply  when  he  has  recovered  a 
judgment,  for  then  he  need  not  sue  in  the  foreign  country  on  the 
judgment  in  his  character  as  administrator,  but  in  his  individual 
capacity.**  (a) 

III.  Rules  common  to  both  executors  and  administrators.  — 
Executors  and  administrators  have,  strictly  speaking,  only  to  do 
with  personal  property,  and  with  this  only  by  way  of  settlement 
of  the  estate.  Though  they  hold  in  a  fiduciary  character,  their 
trust  is  implied.  An  express  trust  of  personal  property  may  be 
given  to  an  executor,  but  in  that  case  he  is  really  a  trustee.  In 
the  same  way,  he  may  have  the  title  to  real  estate,  or  authority 
over  it.  On  the  first  of  these  suppositions,  he  will  be  deemed  a 
trustee,  and  in  the  second,  the  donee  of  a  power.  In  discussing 
this  subject,  notice  will  only  be  taken  of  the  duties  of  executors 
and  administrators  strictly  as  such,  except  that  their  statutory 
power  to  dispose  of  land  to  pay  the  testator's  or  intestate's  debts 
will  be  briefly  noticed. 

It  should  be  said,  by  way  of  preliminary,  that  the  interest  of 
two  or  more  executors  is  joint,  and  cannot  be  divided  into  distinct 
powers.^  Each,  however,  has  entire  control  of  the  personal  estate, 
and  may  release  a  debt  or  transfer  a  right  of  action  without  the 
others.^  The  same  rule  seems  to  be  applicable  to  administrators, 
though  it  was  at  one  time  thought  otherwise.  The  receipt  of  one 
executor  is  sufficient,  though  he  forges  the  signature  of  the  co- 
executor  to  the  receipt,  and  embezzles  the  amount  paid.^  So  one 
may  settle  an  account  though  his  associates  dissent.^ 

1  In  re  Ivory.  L.  R.   10  Ch.  D.    372  ;  ^  Owen  v.  Owen,  1  Atk.  494. 

Bans  V.  Jackson,  1  Ph.  582.  ^  Jacomb  v.  Hai-wood,  2  Ves.  Sr.  265  ; 

2  See  post,  p.  667.  Charlton  v.  Earl  of  Durham,  L.  R.  4  Ch. 
8  Fernandes'   Executors'  Case,  L.  E.  5     App.  433. 

Ch.  App.  314.     See  ante,  p.  644.  '  Charlton  v.  Earl  of  Durham,  supra; 

*  Talmage    v.    Chapel,    16    Mass,    71  ;     Barry  v.  Lambert,  98  N.  Y.  300. 
In  re    Macnichol,  L.  R.  19  Eq.  81.  ^  Smith  v.  Everett,  27  Beav.  446. 

(a)  See  Tittman  v.  Thornton,  107  Mo.  500 ;  Barton  v.  Higgins,  41  Md.  539. 


g48  THE  LAW  OF  PERSONAL  PKOPERTY. 

The  following  are  among  the  general  duties  of  executors  and 
administrators. 

(1)  To  hury  the  deceased.  The  executor  is  entitled  to  the  pos- 
session of  the  body  of  the  testator.  His  duty  is  to  bury  it,  though 
there  be  a  direction  in  the  will  that  it  be  burnt.  Such  a  direc- 
tion cannot  be  enforced  against  the  executor.^ 

Tlie  general  rule  is  to  allow  the  executor  or  administrator  a 
sufficient  sum  for  funeral  expenses,  depending  upon  the  dece- 
dent's station  in  life.  A  very  rigid  rule  was  formerly  applied  in 
case  of  insolvency  in  favor  of  the  creditors.^  The  more  modern 
doctrine  is  to  follow  the  rule,  even  in  cases  of  insolvency .^  In 
one  instance  the  court  refused  to  allow  <£2210  for  the  burial  of 
an  insolvent  nobleman.* 

(2)  The  collection  of  assets  and  the  payment  of  debts.  The 
generic  name  for  property  belonging  to  the  testator,  and  appli- 
cable to  the  purposes  of  the  settlement  of  the  estate,  is  assets. 
Assets  are  either  legal  or  equitable.  Assets  are  said  to  be  legal 
when  they  can  be  recovered  by  an  executor  or  administrator  by 
virtue  of  his  office.  They  would  thus,  for  this  purpose,  be  legal, 
even  though  recoverable  solely  in  a  court  of  equity.  On  the  other 
hand,  if  the  property  would  not  have  come  under  the  control  of 
the  executor  at  all  unless  there  had  been  a  direction  by  the  tes- 
tator to  that  effect,  it  would  have  been  "  equitable  assets."  An 
instance  is  land  directed  by  the  testator  to  be  sold  for  the  payment 
of  his  debts.^ 

The  importance  of  the  distinction  between  legal  and  equitable 
assets  is,  that  the  former  are  used  in  a  prescribed  order  called  the 
"  course  of  administration,"  while  the  latter  are  applied  propor- 
tionally and  without  discrimination,  under  the  cardinal  maxim 
that  "  equality  is  equity."  The  common-law  rules  as  to  the  ad- 
ministration of  legal  assets  are  arbitrary  and  unjust.  One  of  them 
allows  the  executor,  if  he  be  a  creditor,  to  retain  an  amount  suffi- 
cient to  pay  his  own  claim,  to  the  exclusion  of  other  creditors. 
This  he  may  do,  though  his  claim  has  become  barred  by  the  Stat- 
ute of  Limitations  during  the  lifetime  of  the  testator.^  On  the 
other  hand,  if  the  assets  be  equitable,  he  has  no  absolute  right  of 

1  Williams  v.  Williams,  L.  R.  20  Ch.  There  is  much  confusion  upon  this  sub- 
D-  659.  ject    in    the    earlier   decisions.      This   is 

2  Greenside  v.  Benson,  3  Atk.  248,  249  ;  cleared  away  by  the  decision  in  the  Brun- 
Stag  ■y.  Punter,  Id.  119.  ning  Case,  in  which  separate  opinions  are 

3  Pitchford  v.  Hulme,  3  L.  J.  (Ch.)  delivered  by  the  most  eminent  judges  of 
223.  England. 

*  Eissettv.-Antrobus,  4  Sim.  512.  6  HiU   v.  Walker,    4    Kay  &  J.   166; 

5  Cook  V.  Gregson,  3  Drew.  547;  Att'y-     Stahlschmidt  v.  Lett,  1  Sm.  &  G.  415. 
Genl.  17.  Brunning,  8  H.  of  L.  Cas.  243. 


I 


TITLE    BY   ACT    OF   THE    LAW. 


649 


retainer,  but  though  in  possession,  can  only  keep  his  proportion.^ 
There  are  other  rules  of  priority  which  it  is  not  necessary  to  refer 
to.  In  this  country,  statutes  often  regulate  the  subject,  and  intro- 
duce the  principle  of  equality,  following  in  the  main  the  doctrine 
of  equitable  assets.  There  are  still  some  priorities  established, 
such  as  debts  due  the  United  States,  or  the  particular  State  where 
the  estate  is  being  administered. 

Administration  of  the  estate  of  an  insolvent  decedent  will  thus 
be  substantially  like  a  bankruptcy  proceeding,  in  which,  as  has 
already  been  seen,  certain  priorities  are  held  to  be  consistent  with 
the  general  distribution  of  the  estate  among  creditors,  on  the 
principle  of  proportion. ^ 

Statutory  regulations  will  be  found  requiring  the  executor,  etc., 
to  advertise  for  claims  in  a  specified  way,  to  be  presented  within 
a  prescribed  time.  If  not  presented,  the  executor  will  be  justified 
in  paying  such  as  are  presented.  This  may,  of  course,  result  in 
an  exhaustion  of  the  assets.  A  failure  to  comply  with  the  rule 
does  not  discharge  the  debt.  The  executor  must  also  be  satisfied 
that  the  claim  is  valid,  and  may  require  it  to  be  verified  in  a  mode 
prescribed  by  law.  If  the  claim  is  disputed,  the  remedy  of  the 
creditor  is  to  proceed  by  action  or  arbitration.  The  details 
of  these  matters  of  procedure  should  be  sought  in  the  local 
statutes.  (J) 

As  to  the  collection  of  claims  due  the  estate,  the  executor  for 
the  most  part  stands  in  the  position  of  the  decedent,  and,  w^ith 


1  Bain  v.  Sadler,  L.  R.  12  Eq.  570; 
Duignan  v.  Croome,  41  L.  T.  672. 

2  The  law  in  New  York  prescribes  the 
following  order  :  — 

1.  Debts  entitled  to  a  preference  under 
the  laws  of  the  United  States. 

2.  Taxes  assessed  upon  the  property  of 
the  deceased  previous  to  his  death. 

3.  Judgments  docketed  and  decrees  en- 
tered against  the  deceased,  according  to  the 
priority  thereof  respectively. 

4.  All  recognizances,  bonds,  sealed  in- 
struments, notes,  bills,  and  unliquidated 
demands  and  accounts. 

Preference  may  be  given  b}'  the  surro- 
gate to  rents  due  or  accruing,  upon  leases 
held  by  the  testator  or  intestate  at  the 
time  of  his  death,  over  debts  of  the  fourth 
class,  if  it  appear  to  his  satisfaction  that 
such  preference  will  beneiit  the  estate  of 
the  testator  or  intestate. 


No  preference  can  be  given  to  any  debt 
in  any  one  of  these  classes  over  another 
in  the  same  class,  except  in  class  3.  A 
debt  due  and  payable  cannot  be  preferred 
to  one  not  due.  A  debt  not  due  may  be 
paid  by  an  executor,  etc.,  after  making 
a  rebate  of  legal  interest  on  the  sum  paid 
for  the  unexpired  term  of  credit  without 
interest.  No  advantage  can  be  obtained 
by  the  commencement  of  a  suit,  nor  by 
the  recovery  of  a  judgment  against  the 
executor  or  administrator.  An  executor 
or  administrator  cannot  satisfy  his  own 
debt  out  of  the  property  of  the  deceased 
until  it  is  allowed  by  the  surrogate,  and 
such  debt  is  not  entitled  to  preference  over 
others  of  the  same  class,  (a)  This  statute 
establishes  a  symmetrical  system  greatly 
to  be  preferred  on  the  score  of  justice  to 
the  rules  of  the  common  law. 


(a)  Code  of  Civ.  Pro.  §  2719. 


(b)  See  in   New  York,   Code  of  Civ, 
Pro.  §  2718. 


/'- 


550  THE  LAW  OF  PERSONAL  PROPERTY. 

some  exceptions,  can  collect  what  he  could  hare  collected.  The 
exceptions  consist  in  the  main,  of  causes  of  action  of  a  personal 
nature.     These  are  said  "  to  die  with  the  person." 

The  matter  presents  itself  in  two  aspects,  —  one  where  the 
injured  partj  dies,  and  the  other,  where  the  wrongdoer  dies. 
These  personal  actions  are  for  the  most  part  causes  of  action  for 
personal  wrongs,  among  which  may  be  enumerated,  libel,  slan- 
der, assault  and  battery,  false  imprisonment,  malicious  prose- 
cution, etc.  There  are,  however,  some  instances  of  personal 
actions  arising  out  of  contract,  such  as  a  breach  of  promise 
of  marriage.^  When  a  wrong  is  committed  upon  property,  a 
complex  question  arises.  A  mere  wrong  depriving  a  person 
of  property  will  not  survive  against  the  wrongdoer's  personal 
representatives,  such  as  a  cause  of  action  for  negligence,  deceit,^ 
or  fraud.^ 

A  different  question  arises  where  the  estate  of  a  wrongdoer  has 
directly  benefited  by  a  wrongful  aci  committed  upon  the  property 
of  another,  —  as,  for  example,  if  he  has  converted  chattels  to  his 
own  use.  In  this  case,  suit  may  be  brought  for  the  value  or  for 
the  chattels  themselves,  if  they  still  exist.  The  plaintiff  can  then, 
according  to  the  better  opinion,  recover,  particularly  in  the  last  in- 
stance ;  for  the  executor,  by  refusing  to  deliver  the  chattels,  makes 
the  wrong  his  own.  The  liability  of  the  executor  of  a  wrongdoer 
for  acts  done  to  the  real  estate  of  another  has  been  thoroughlv 
considered  by  the  Court  of  Appeal  in  England.*  In  the  case 
referred  to,  there  were  four  principal  questions.  First.  The  wrong- 
doer had  taken  away  minerals  and  appropriated  them  to  his  own 
use,  and  there  was  an  inquiry  as  to  their  value.  Second  and 
Third.  He  had  carried  minerals  through  roads  or  passages  under 
the  farm  of  the  injured  party,  and  the  inquiries  were  as  to  the 
quantities  that  had  been  carried,  and  the  value  of  the  way  appro- 
priated. Fourth.  It  was  claimed  that  he  had  damaged  the  farm 
by  the  way  he  worked  under  it,  and  the  question  was  as  to  the 
damage  sustained.  While  the  inquiries  were  pending,  the  wrong- 
doer died.  It  was  held  that  no  recovery  could  be  had  against  the 
executor  for  any  claim  but  the  first.  In  that  instance  something 
positive  had  been  added  to  the  wrong-doer's  estate.  In  the  other 
cases,  the  most  that  could  be  said  was,  that  the  gain,  if  any,  was 
indirect  and  negative.  In  brief,  the  wrongdoer  must  be  shown 
to  have  taken  some  beneficial  property  or  value  capable  of  being 

i  Wade  V.  Kalbfleisch,  58  N.  Y.  282.  3  Walsham  v.  Stainton,  1  Hem.  &  M. 

2  Young  V.  Walliugford,  52  L.  J.  (Ch.)     322. 
^^^'  *  Phillips  V.  Homfray,  L.  R.  24  Ch.  D. 

(1883). 


TITLE    BY    ACT   OF   THE    LAW.  651 

measured,  followed,  and  recovered.^  In  New  York  there  is  a 
statute  governing  the  subject  found  in  the  note.^ 

When  a  legal  duty  is  cast  upon  the  executor,  he  can  be  held 
upon  the  theory  of  an  implied  contract.  This  fiction  is  sometimes 
carried  very  far.  Thus,  where  a  guest  at  the  house  of  a  friend 
died  of  a  malignant  and  contagious  fever,  and,  by  advice  of  his 
medical  attendants,  the  furniture  in  the  bedroom  was  destroyed 
to  prevent  contagion,  and  other  expenses  incurred,  it  was  held 
that  the  executors  of  the  guest  were  liable.^ 

When  a  contract  made  by  a  testator  is  sought  to  be  enforced, 
either  by  or  against  an  executor,  etc.,  his  representative  character 
must  be  observed.  The  ownership  of  the  claim  or  the  ground  of 
liability  must  be  traced  both  in  the  pleadings  and  proofs  to  or 
from  the  testator.  On  the  other  hand,  if  the  executor  himself 
entered  into  the  contract,  though  he  did  it  for  the  benefit  of  the 
estate,  the  representative  character  is  not  material. 

As  a  general  rule,  an  executor  is  only  liable  to  the  amount  of 
assets  received.  He  may  increase  his  liability  by  admitting  that 
he  possesses  assets  which  he  does  not  in  fact  have.  Such  an 
admission  may  be  made  in  a  variety  of  ways,  such  as  by  paying 
interest  on  a  legacy,*  or  by  giving  a  note  to  a  legatee  on  account 
of  the  legacy,^  or  by  paying  in  money  to  the  executor's  deposit 
account  in  a  bank,  etc.^  Admissions  like  these  can  be  rebutted 
by  the  executor  by  showing  mistake  or  other  excuse.  On  the 
other  hand,  judgment  by  default  against  him  as  executor  has  been 
held  to  be  an  admission  of  assets  binding  on  his  own  estate  as 
if  the  debt  were  his  own." 

Real  estate  as  assets. — It  has  already  been  stated  that  real 
estate  is  not,  strictly  speaking,  assets  ;  still  it  may  become  so,  by 
general  directions  on  the  part  of  the  testator. 

1  One  of  the  judges,  Baggallay,  L.  J.,  person  injured,  or,  after  his  death,  by  his 
would  have  gone  further,  and  held  the  ex-  executors  or  administrators,  against  such 
ecutor  liable,  considering  that  the  estate  wrongdoer,  and,  after  his  death,  against 
of  the  wrongdoer  had  been  benefited  by  his  executors  or  administrators,  in  the 
the  wrongful  use  of  the  roads.  The  dif-  same  manner,  and  with  the  like  effect  in  all 
ference  between  the  judges  was  in  the  respects,  as  actions  founded  upon  con- 
proper  application  of  a  conceded  princi-  tracts."  2R.  S.  447,  §  1  (8th  ed.  p.  2670). 
pie.  Cases  on  which  the  opinion  rested  The  second  section  provides  an  exception 
were  Sherrington's  Case,  Savile's  R.  40;  in  the  case  of  personal  actions. 
Hambly  v.  Trott,  1  Cowp.  371,  and,  in  ^  Shallcross  v.  Wright,  12  Beav.  558. 
equity,  Marquis  of  Lansdovvne  v.  Mar-  *  Atty-Gen'l  v.  Higham,  2  Y.  &  Colly, 
chioness  of  Lansdovvne,  1  Madd.  116.  C.  C.  634. 

2  The    statute    is    as    follows:    "For         5  Holland  v.  Clark,  Id.  319. 

wrongs  done  to  the  property,   rights,    or  ^  Crossdail    v.   Phillips,  5   L.  J.   (Ch.) 

interests  of  another,  for   which  an  action     52. 

might  be  maintained  against  the  wrong-  "  Ee  Higgins's  Trusts,  2  Giff.  562. 

doer,  such  action  may  be  brought  by  the 


^ 


g52  THE  LAW  OF  PERSONAL  PROPERTY. 

The  fact  that  the  land  is  charged  with  debts  does  not  neces- 
sarily make  it  assets.  It  is  under  such  circumstances  simply  in 
aid  of  the  personal  estate,  which  is,  as  a  rule,  the  primary  fund 
for  payment  of  debts.  Accordingly,  this  must  be  exhausted 
before  the  land  can  be  reached. ^  The  testator  may,  however, 
by  sufficient  words,  make  the  land  the  primary  fund,  and  so 
exhaust  that  before  reaching  the  personal  property.  The  reason 
is  plain.  The  property,  in  whatever  form  it  may  be,  is  his,  and 
how  it  shall  be  used  after  his  death  is  purely  a  matter  of  intention. 

The  general  order  in  which  property  should  be  used  in  payment 
of  debts  is  substantially  as  follows,  unless  there  be  evidence  of 
intention  to  the  contrary:  (1)  personal  estate;  (2)  lands  spe- 
cially devised  for  the  purpose  of  paying  debts  ;2  (3)  lands  de- 
scending to  an  heir;  (4)  lands  devised,  but  without  the  purpose 
of  their  being  used  to  pay  the  testator's  debts.^  {a) 

The  distinction  must  be  carefully  noted  between  a  mere  charge 
and  a  direction  as  to  the  mode  of  faying  the  debts  from  a  particu- 
lar fund.  It  is  this  last  element  which  makes  the  land  in  question 
the  primary  fund.*  If  the  testator  has  gone  still  further,  and 
shown  his  intention  to  exempt  his  personal  estate  from  his  debts^ 
the  court  will  make  the  land  the  primary  fund,^but  a. mere  charge, 
as  has  been  seen,  will  not  have  that  effect.^  {b) 

But  if  a  testator  gives  a  pecuniary  legacy  to  A.,  and  then  allows 
land  to  descend  to  his  heir,  B.,  there  is  more  evidence  of  intention 
to  have  the  legacy  paid  than  to  have  the  land  descend,  and  the 
debts  should  be  charged  on  the  latter.'' 

A  difficult  class  of  cases  arises  where  there  is  conflicting  evi- 
dence of  intention,  as  where  the  testator  gives  pecuniary  lega- 
cies, also  specific  legacies,  and  finally  gives  his  land  in  part  to 
specified  persons,  and  the  residue  to  a  residuary  devisee.  It  is 
assumed  that  there  are  no  special  words  in  the  will  "  charging  " 
any  particular  property,  but  that  the  case  is  one  under  modern 
law,  which  in  the  last  resort,  and  in  some  form,  subjects  all  the 
testator's  estate,  both  real  and  personal,  to  the  payment  of  his 
debts. 

In  the  old  law  a  residuary  devise  was  treated  as  a  specific  devise, 
since  the  theory  prevailed  that  nothing  passed  by  a  will  except 

1  Fiugal  V.  Blake,  2  Moll.  50.  6  Milnes  v.  Slater,  8  Ves.  295. 

2  Phillips  V.  Parry,  22  Beav.  279.  ^  Heme  v.  Meyrick,   1  P.  Wms.  201; 

3  Manning!'.  Spooner,  3  Ves.  114.  Clifton  v.  Burt,  Id.  678;  2  Williams  on 
*  Harmoodi;.  Oglander.S  Ves.  106, 124.  Executors  (7th  ed.),  p.  1696;  Id.  1717, 
5  Reeves  v.  Newenham,  2  Ridgeway's  and  cases  cited. 

Pari.  Cas.  11. 

(a)  Heermans  v.  Robertson,  64  N.  Y.  [h)  Sweeney  v.  Warren,  supra. 

332  ;  Sweeney  v.  Warren,  127  N.  Y.  426. 


TITLE    BY    ACT    OF    THE    LAW.  653 

that  which  a  testator  owned,  at  the  time  of  its  execution.  Of 
€ourse,  as  every  parcel  of  land  has  in  it  the  element  of  locality,  it 
could  be  labelled.  And  if  the  owner  gave  a  particular  lot  to  A., 
and  another  to  B.,  and  the  "  residue  "  to  C,  that  which  was  de- 
vised to  the  last,  though  in  general  residuary  words,  was  as  specific 
as  the  lots  which,  by  special  mention,  were  devised  to  A.  and  B. 
Modern  legislation,  both  in  England  and  in  this  country,  has 
enabled  a  testator,  by  appropriate  words,  to  make  a  devise  include 
all  the  land  which  he  owns  at  the  time  of  his  death.  At  once  a 
great  judicial  controversy  arose  in  England,  whether  a  residuary 
devise  was  any  longer  specific.  There  are  many  contradictory 
decisions  ;  but  it  is  now  settled  by  the  appellate  court  that  a 
residuary  devise  is  still  specific.^  The  practical  result  is,  that 
in  case  of  a  deficiency  of  the  general  personal  estate,  specific 
legacies,  specific  devises  of  land,  and  residuary  devises  contribute 
ratably. 2 

In  England  it  is  held  that  the  rule  of  contribution  applies  as 
between  a  pecuniary  legatee  (not  specific)  and  a  residuary  devisee, 
on  the  general  ground  that  "  every  will  ought  to  be  read  as  in  effect 
embodying  a  declaration  by  the  testator,  that  the  payment  of  his 
debts  shall  be,  as  far  as  possible,  so  arranged  as  not  to  disappoint 
any  of  the  gifts  made  by  it,  unless  the  instrument  discloses  a 
different  intention. "  ^ 

In  the  absence  of  statutes,  the  probate  court  does  not  have  the 
power  to  take  the  land  of  a  testator  for  the  payment  of  debts. 
This  is  a  power  vested  in  courts  of  equity,  as  engaged  in  the 
administration  of  trusts.  In  this  country,  probate  courts  have 
statutory  powers  to  order  the  sale  of  land  to  pay  debts.  This 
extension  of  power  to  the  probate  courts  does  not  deprive  the 
equity  courts  of  their  jurisdiction,  without  words  in  the  statute  to 
that  effect.  Moreover,  if  sufficient  power  were  given  to  executors 
in  the  will,  they  might  sell  the  land  without  resort  to  a  court,  and 
avoid  the  delay  and  expense  of  a  proceeding  under  the  statute. 

The  New  York  statute  is  found  in  the  Code  of  Civil  Procedure. 
The  proceedings  may  be  had  at  any  time  within  three  years  after 
letters  granted,  on  the  petition  of  an  executor  or  administrator,  or 
a  creditor.  The  proceedings  cannot  be  resorted  to  after  three 
years.  Other  methods  must  be  adopted.  Nor  are  they  to  be  used 
in  case  of  an  express  charge  of  debts  upon  land,  as  the  jurisdic- 

1  Hensman  v.  Fryer,  L.  E.  3  Ch.  App.  26  Beav.  465;  Bethell  v.  Green,  34  Id. 
420;  Lancefield  v.  Iggulden,  L.  E.  10  Ch.     302. 

App.  136.  3  Tombs  v.   Eoch,  2  Colly.  490,  502, 

2  Id.,  see  also  Gervis  v.  Gervis,  14  adopted  in  Hensman  v.  Fryer,  L.  E.  3  Ch. 
.Sim.  654;  Eddels  v.  Johnson,   1  Giff.  22;     App.  420,  426. 

Opposing  cases  are  Eotheram  v.  Eotheram, 


g-;4  THE  LAW  OF  PERSONAL  PKOPEETY. 

tion  of  courts  of  equity  is  ample.^  (a)  The  result  of  this  legislation 
is  that  the  debts  of  a  testator  are  a  statutory  lien  upon  the  land 
for  three  vears  ;  on  the  expiration  of  that  period  the  lien  ceases. 
As  this  is  a  special  statutory  proceeding,  great  care  must  betaken 
to  observe  all  the  requirements  essential  to  the  jurisdiction  of  the 
court,  as  otherwise  the  proceeding  may  be  a  nullity. 

The  mode  of  proceeding  after  three  years  is  an  action  to  make 
heirs  and  devisees  liable  to  the  extent  of  estates  or  interests 
descended  or  devised  to  them.  The  action  is  to  be  brought  jointly 
against  all  the  heirs  or  devisees.^  The  amount  which  each  is  to 
pay  is  apportioned  amongst  the  various  heirs  or  devisees,  accord- 
ino-  to  the  value  of  the  real  property  descended  or  devised  to  them.^ 

(3)  Payment  of  legacies.  This  is  a  matter  that  is  only  appli- 
cable to  an  executor,  or  to  an  administrator  with  the  will  annexed, 
although  questions  of  a  similar  nature  may  be  brought  before  an  ad- 
ministrator in  respect  to  distributive  shares  in  the  intestate's  estate. 

It  is  a  general  rule  that  a  legacy  is  not  payable  until  one  year 
after  the  testator's  death.*  (h)  It  can,  however,  be  made  payable 
earlier  by  the  direction  of  the  testator,  as  well  as  at  a  period  more 
remote.^  If  a  legacy  be  payable  when  the  legatee  shall  be  twenty- 
one,  and  the  legacy  be  with  interest  before  that  time,  it  is  pay- 
able at  once  to  his  executor,  upon  his  death  ;  otherwise,  payment 
must  be  deferred  until  the  legatee  would  have  attained  twentv-one, 
had  he  lived.^  A  different  rule  prevails  when  the  legacy  is  given 
to  B.  in  case  A.  dies  before  the  prescribed  time.  Upon  A.'s 
death  the  legacy  is  at  once  payable  to  B.'''  If  an  absolute  vested 
bequest  be  given  to  A.,  payable  at  twenty-five,  the  direction  to 
postpone  payment  is  inconsistent  with  ownership,  and  will  be 
disregarded.^ 

The  currency  in  which  a  legacy  is  payable,  where  the  will  is 
silent,  is  usually  that  of  the  country  where  the  testator  resided, 
though  the  legatee  reside  in  a  foreign  country.^  If  payable  in 
produce,  —  e.  g.^  sugar,  —  and  the  executor  does  not  pay,  the  value 
must  be  awarded.^^ 

Specific  bequests  should  be  delivered  in  their  existing  form,  and 

1  Code  of  Cir,  Pro.  §§  2749-2801.  »  Eocke  v.   Rocke,   9  Beav.   QQ;  In  re 

2  Id.  §§  1843-1860.  Jacob's  Will,  29  Id.  402. 

3  Id.  §  1847.  9  Saundei-s  v.  Drake,  2  Atk.  465.  See 
*  Hill  V.  Chapman,  1  Ves.  405,  407.  also  Pierson  v.  Garnet,  2  Bro.  C.  C.  38  j 
6  Frost  V.  Capel,  2  Beav.  184.  Cockerell  v.  Barber,  16  Ves.  461. 

6  Crickett  v.  Dolby,  3  Ves.  10,  13.  w  Symes  v.  Vernon,  2  Vern.  553. 

'  Laundy  v.  Williams,  2  P.  Wms.  478. 


[a)  See  Matter  of  Gantert,  136  N.  Y.     from  the  grant  of  letters.     Code  of  Civ. 
106;  Matter  of  Hesdra,  2  Connolly,  514.        Pro.  §  2721. 
Qj)  In  New  York  the  time  is  one  year 


TITLE    BY    ACT    OF   THE    LAW.  655 

not  sold,  unless  a  sale  is  necessaiy  for  the  payment  of  debts. ^  If 
the  thing  described  is  not  owned  by  the  testator,  the  executor 
should  obtain  it  at  the  expense  of  the  general  estate.  The  executor 
should  not  deliver  the  things  bequeathed  to  the  legatee  until  debts 
are  paid,  for  he  may  be  personally  answerable  to  creditors  for 
their  value,  should  there  be  a  deficiency,  though  he  acted  in  good 
faith,  and  the  deficiency  was  occasioned  by  later  events  which  he 
had  no  reason  to  anticipate.^  Where  several  articles  from  a  mass 
are  bequeathed,  such  as  six  horses  out  of  twenty,  the  legatee  will 
have  a  right  of  selection ;  ^  but  having  once  selected,  his  interest 
is  fixed,  and  he  cannot  cancel  his  choice  and  choose  anew.* 

In  order  to  avoid  some  of  the  questions  above  referred  to,  the 
executor,  on  paying  a  legacy,  may  take  security  from  the  legatee 
to  refund,  if  that  should  become  necessary  in  order  to  pay  debts.^ 
Payment  of  a  legacy,  etc.,  to  an  infant,  is  especially  provided  for 
in  New  York,  by  §  2746  of  the  Code  of  Civil  Procedure. 

Interest  on  legacies.  —  This  is  a  subject  of  much  practical  import- 
ance. As  a  rule,  interest  will  not  begin  to  run  until  a  year  after 
the  testator's  death,  according  to  the  rules  under  which  interest  is 
regularly  allowed,  as  there  is  no  delay  until  that  time.^  Interest 
will,  however,  be  payable  in  special  cases  before  that  time,  so  that 
it  will  only  be  necessary  to  consider  the  special  cases.  In  some 
instances  it  is  not  material  that  the  Avill  is  silent  on  the  subject  of 
interest.'  In  these  instances,  all  the  circumstances  are  taken 
into  account,  in  order  to  arrive  at  a  just  conclusion.^ 

The  payment  of  interest  may  be  implied  under  the  following 
circumstances  :  (A)  When  the  legacy  is  charged  upon  land.  Thus 
it  has  been  held  that  if  a  testator  give  a  legacy  charged  upon  land 
which  yields  rents  and  profits,  and  no  time  of  payment  be  men- 
tioned, the  legacy  shall  carry  interest  from  the  testator's  death. 
A  legacy  charged  on  land,  though  payable  by  express  words  at 
a  future  day  (say  the  death  of  X.)  may  still  draw  interest  before  it 
is  due,  as  being  in  the  nature  of  a  burden  or  lien  upon  the  land.^ 
In  some  cases  the  interest,  though  allowed,  will  not  Ibe  raised  until 
the  future  day  arrives,  —  e.  g.,  the  death  of  a  life  tenant.^''  (a)    The 

1  Clarke  i\  Earl  of  Ormonde,  Jacob,  108.  ^  Donovan  v.  Needham,  9  Beav.  164. 

2  Spode  y.  Smith,  3  Russ.  511.  7  Purcell    v.    Purcell,   2   Dr.    &  War. 

3  Jacques  v.  Chambers,  2  Colly.  435.         217. 

*  Littledale  v.  Bickersteth,  24  AV.  R.  8  Askew    v.    Thompson,    4    Kay  &   J. 

507.  620. 

5  Cases  in  which  security  has  been  re-  9  Earl  of  Milltown  v.  Trench,  4  CI.  & 

quired  by  the  court  are,  Dowley  v.  Winfield,  F.  276. 

14  Sim.  277;  Moffat  v.  Burnie,  16  Beav.         ^'>  Pennefather  u.  Bury,  9  Ir.  Eq.  586. 
298;  Cuthbert  v.  Purrier,  2  Ph.  199. 

(«)  In  re  Waters,  L.  R.  42  Ch.  D.  517. 


^56  THE  LAW  OF  PEKSONAL  PKOPERTY. 

o-cncral  rule  is,  that  where  a  vested  legacy  is  charged  on  land,  inter- 
est will  run  from  the  time  the  legacy  is  "  raisable "  out  of  the 
land,  unless  there  is  some  express  provision  concerning  interest. 
If  the  bequest  be  contingent,  interest  does  not  attach  until  the 
contingency  happens,  unless  there  be  express  words  allowing  it.^ 

(B)  When  given  by  a  parent,  or  one  standing  in  the  place  of  a 
parent.  A  legacy  of  this  sort  bears  interest  from  the  death  of 
the  testator,  on  the  supposition  that  it  is  intended  for  mainten- 
ance.2  (a)  This  rule  applies  to  one  who  puts  himself  in  the  place 
of  a  parent.^  It  is  not  extended  to  adults.*  (h)  It  will  be  applied 
to  infants,  even  though  the  legacy  be  payable  at  a  future  day,  — 
e.g.  Sit  twenty-one, —  if  there  be  no  provision  for  maintenance.^ 
The  same  rule  is  applied  to  bequests  if  children  or  grandchildren, 
etc.,  attain  twenty-one,  with  gifts  to  others  in  case  they  die  under 
that  age.^ 

On  the  other  hand,  if  there  be  an  express  provision  for  main- 
tenance, a  legacy  payable  at  a  future  day  will  not  bear  interest 
until  the  time  of  payments  The  true  theory  of  the  whole  sub- 
ject is,  that  there  is  a  presumption  that  a  parent  would  not  leave 
a  child  without  support,  but  that  this  presumption  may  be  rebutted 
by  evidence  to  the  contrary.^  (c) 

The  rule  of  maintenance  has  not  been  extended  in  the  English 
cases  to  illegitimate  children,  unless  the  father  has  apparently 
assumed  an  obligation  towards  them  by  placing  himself  in  loco 
parentis.^  In  that  case,  interest  for  maintenance  is  allowed.^*^ 
The  decisions  on  this  point  seem  to  rest  on  too  narrow  a  basis, 
since,  as  a  father  of  an  illegitimate  child  is  under  a  natural  duty 

1  Gillman  v.  Gillman,  16  Ir.  Chan.  461.  «  Li  re  Rouse's  Estate,  9  Hare,  649. 
See  Spurway  v.  Glynn,  9  Ves.  483.  ^  Perry  v.  Whitehead,  6  Ves.  544. 

2  Becleford  v.  Tobin,  1  Ves.  Sr.  308  ;  1°  Eussell  v.  Dickson,  2  Dr.  &  War. 
Crickett  v.  Dolby,  3  Ves.  10.  183  ;   Rogers  v.   Soutten,    2    Keen,    598. 

3  Wilson  V.  Maddison,  2  Y.  &  Colly.  In  Russell  v.  Dickson,  siqyra,  the  court 
Ch.  C.  372.  laid  great  stress  upon  the  fact   that  the 

*  Raven  v.  Waite,  1  Svvanst.  553;  Wall  testator  had,  in  his  will,  called  the  legatee 

V.  Wall,  15  Sim.  513.  his  natural  daughter  Mary  Shcehan,  while 

^  Heath  v.  Perry,  3  Atk.  101.  in  the  codicil  he  called  her  his  daughter 

6  In  re  Bowden,  6  L.  J.  N.  s.  Ch.  146;  Mary  Dickson.     This  showed  an  intent  to 

Mills  V.  Robarts,  1  Russ.  &  M.  555;  Les-  stand  in  loco  parentis,  and  to  elevate  her  to 

lie  V.  Leslie,  Lloyd  &  Goold,  1.  his  own  rank  in  society.   This  was  sufficient 

"'  Wynch  v.  Wynch,  1  Cox  Eq.  433.  to  justify  interest  for  maintenance. 

{a)  See  Brown  v.  Knapp,   79   N.    Y.  after  the  granting  of  letters  testamentary, 

136;  Lyon  V.  Industrial  School  Association,  or  of  administration,  —  interest  does  not 

127  N.  Y.   402;  Stout  v.  Stout,  44  N.  J.  begin  to  run  until  one  year  from  the  grant- 

Eq.  479;  Davison  v.  Rake,  Id.  508.  ing  of  letters.     ]\Iatter  of  Accounting  of 

[h)  Thorn  v.  Garner,  113  N.  Y.  198.  McGowan,  124  IST.  Y.    526;    AVheeler    v, 

(c)  When,  by  statute,  legacies  are  made  Hatheway,  54  Mich.  547. 
payable  at  a  certain  time,  —  c.  g.  one  year 


TITLE    BY    ACT    OF    THE    LAW.  657 

to  support  him,  it  may  fairly  be  presumed  that  he  intends  to  do 
so,  when  he  recognizes  tliat  duty  so  far  as  to  give  him  a  legacy. 

There  is  no  interest  on  a  sum  paid  into  court,  unless  the  amount 
paid  in  yields  interest,  in  which  case  the  legatee  will  have  the  in- 
terest which  is  earned.^  (a)  Interest  on  an  annuity  commences 
from  the  testator's  death.2(^)  A  legacy  to  a  wife  (not  being 
given  as  a  jointure)  does  not  bear  interest  until  a  year  after  the 
testator's  death.^ 

Dutr/  on  legacies  ayid  successions.  It  has  long  been  the  policy 
in  England  to  impose  a  duty  upon  legacies,  and  in  later  years  a 
duty  or  tax  on  "  successions  "  has  also  been  levied.  The  statute 
on  this  subject  also  affects  the  duties  on  legacies.'*  By  another 
enactment,  power  is  given  to  representatives  in  certain  cases 
to  commute  legacy  or  succession  duties  presumptively  payable.^ 
These  statutes  have  been  very  fruitful  in  litigation,  and  there  is 
a  large  number  of  decisions  upon  the  subject.  The  legislature  of 
New  York  has  recently  adopted  this  policy  and  established  both 
legacy  and  succession  duties  in  a  single  statute.  (<?)  Reference  to 
the  English  decisions  will  probably  be  found  useful  in  discussing 
questions  that  may  come  before  the  courts  in  construing  similar 
laws  elsewhere.^ 

(4)  Distribution  of  the  estate.  — Where  there  is  no  will,  the  dis- 
tribution of  the  estate  among  the  next  of  kin  requires  but  brief 
mention,  as  the  principles  governing  the  payment  of  legacies 
largely  apply.  Distribution  is  usually  ordered  on  the  final  ac- 
counting among  the  parties  entitled  under  the  Statute  of  Dis- 
tributions, already  considered.  It  is  sometimes  directed  before 
the  time  for  creditors  to  present  their  claims  has  expired,  where 
the  debts  of  the  decedent  can  be  secured  by  refunding  bonds  given 
by  the  distributees.  The  details  of  this  procedure  must  be  sought 
for  in  local  statutes. 

In  case  a  distributee  is  an  infant,  it  is  necessary  in  many  States 
to  appoint  a  special  guardian  or  guardian  ad  litem  to  represent 
him  on  the  accounting  and  distribution.  In  some  States  his  share 
is  paid  to  his  general  guardian,  or  paid  into  court  until  he  arrives 

1  Maxwell  v.   Wettenhall,  2  P.   Wms.  Duty  Act,"  18.53.     See  also  44  &  45  Vict. 

26.  c.  12  ;  51  &  52  Id.  c.  3  ;    52  &  53  Id.  c.  7- 

•^  Gibson  v.  Bott,  7  Ves.  89,  96.  *  43  Vict.  c.  14,  §  11. 

3  In   re  Whittaker,  L.    R.   21  Ch.   D.  ^  gee    Shelford  :    Succession,   Probate, 

657  ;  In  re  Percy,  24  Id.  616.  and  Legacy  Duties  (1861)  ;    and  Trevor  : 

*  16    &   17    Vict.    c.   51,   "Succession  Taxes  on  Succession  (1881). 


a    Johnson  v.  Moon,  82  Ga.  247.  (c)  Laws  of   1892,   ch.  399,   repealing 

{h)  See  Matter  of  Staniield,  135  N.  Y.     the  former  statutes  and  constituting  the 
292.  present  law  upon  the  subject. 


42 


g58  THE  LAW  OF  PERSONAL  PROPEKTY. 

at  majority.*  Where  a  distributee  is  unlcnown,  statutes  now  pro- 
vide that  his  share  shall  be  paid  into  some  public  repository  for 
his  benefit.2  The  accounting  and  distribution  ordinarily  occur  at 
the  end  of  one  year  from  the  granting  of  letters  of  administra- 
tion, (a)  Should  the  distributee  die  before  that  time,  his  interest 
passes  to  his  personal  representative. 

(5)  Management  of  the  estate.  The  duties  of  executors  and 
administrators  in  this  respect  are,  in  a  single  expression,  those  of 
a  trustee.  They  have  the  legal  title  to  the  personal  property, 
subject  to  a  trust  imposed  upon  them  by  law  to  hold  and  manage 
it  for  the  benefit  of  the  creditors  and  beneficiaries,  including 
legatees  and  next  of  kin.  These  general  duties  will  now  be 
stated,  the  object  being  to  group  together  under  this  head  such 
acts  as  making  contracts  on  account  of  the  estate,  continuing  the 
business  of  the  decedent,  making  investments,  taking  out  insur- 
ance, general  care  of  the  assets,  etc. 

1.  Contracts  of  personal  representatives. —  It  is  a  general  rule  of 
law,  that  if  an  executor  make  a  promissory  note,  though  for  the 
benefit  of  the  estate,  and  though  signing  his  name  as  executor, 
he  will  be  personally  liable  to  the  holder.^  The  word  "  executor  " 
added  to  his  signature  is  a  word  of  "  description  "  merely,  and  does 
not  change  the  nature  of  the  contract.  In  some  instances  he  will 
be  entitled  to  indemnity  from  the  estate,  but  not  necessarily.* 
Under  the  provisions  of  the  Statute  of  Frauds,  a  promise 
to  pay  out  of  his  own  estate  must  be  in  writing.  A  promise  so 
made,  and  based  on  a  consideration^  will  be  personally  binding. 
Examples  of  consideration  are  such  as  these :  where  an  attorney 
delivered  up  papers  belonging  to  the  estate  at  his  request,  which 
the  attorney  was  not  obliged  to  deliver  until  his  bill  was  paid,^ 
or  where  the  creditor  consented  to  wait  for  the  payment  of  his 
claim  on  the  promise  of  the  executors  to  settle  it.^ 

2.  Continuing  the  business  f  the  decedent.  —  It  is  frequently 
requested  by  a  testator  that  his  executors  should  for  a  time  carry 
on  the  trade  in  which  he  was  himself  engaged,  perhaps  with  the 
belief  that  his  estate  can  in  this  way  be  settled  to  greater  advan- 
tage. There  are  two  principal  classes  of  cases  of  this  kind, — 
one,  where  the  testator  was  a  sole  trader  ;  the  other,  where  he  was 

1  New  York  Code  of  Civ.  Pro.,  §  2746.  ^  Ducliess  of  Hamilton  v.  Incledon,  4 

2  Id.  §  2747.  Bro.  P.  C.  4. 

8  Lucas  V.  Williams,  3  Giff.  150.  6  Bradly  v.  Heath,  3  Sim.  543. 

*  Lucas  V.  Williams  (No  2),  4  De  G. 
F.  &  J.  438. 


(a)  In  New  York,  by  ch.  421,  Laws  of    ately  after  publication  for  claims  is  cora- 
1894,  an  accounting  may  De  Lad  immedi-     plete,  the  creditors  being  cited. 


TITLE    BY    ACT   OF   THE    LAW.  659 

a  member  of  a  firm.  Only  the  first  of  these  classes  will  now  be 
considered,  the  other  class  more  properly  belonging  to  the  law  of 
partnership. 

The  regular  business  of  a  personal  representative  is  to  settle 
and  adjust  the  affairs  of  the  estate  at  the  earliest  practicable  mo- 
ment.^ It  is  accordingly  an  inflexible  rule  that  the  business 
ought  not  to  be  carried  on  without  the  most  distinct  and  positive 
authority  to  that  effect  in  the  will  itself.^  Under  these  circum- 
stances, if  the  enterprise  prove  disastrous,  only  the  capital  em- 
barked in  the  business  will  be  liable.^  A  direction  by  the  testator 
that  the  business  shall  continue  to  be  carried  on  does  not  author- 
ize the  executor  to  embark  in  it  additional  capital.**  («) 

Though  the  testator's  estate  be  liable  in  a  limited  manner,  the 
executor  himself  will  be  personally  responsible  for  the  debts  con- 
tracted after  the  testator's  death.^  It  is  not  material  to  this  lia- 
bility whether  he  is  or  not  entitled  to  be  indemnified  from  the 
testator's  estate.^  The  executor  "  is  liable  for  every  shilling  on 
every  contract  he  enters  into."  '  That  portion  of  the  estate  which 
the  testator  set  apart  for  the  business  becomes  a  trust  estate,  and 
may  be  treated  as  separated  from  the  rest  of  his  estate,  so  that 
only  that  will  be  liable  for  the  debts  contracted  in  the  business,  (b) 
Accordingly,  the  creditors  may  not  only  sue  the  executor  on  his 
contract,  but  may  be  substituted  or  subrogated  to  the  position  of  the 
executor  in  his  claim  for  indemnity  out  of  the  testator's  estate.  It 
follows  that  if  the  executor  has  no  claim  for  indemnity,  the  credi- 
tors have  no  claim  for  substitution,  and  cannot  proceed  against 
the  testator's  estate.^  But  it  must  be  repeated  that  the  debt 
is  the  executor's  debt,  and  that  the  creditor  cannot  proceed  against 
the  property  of  the  testator  except  as  above  indicated,  even 
though  the  executor  use  the  property  of  the  estate  as  though  it 
were  his  own.^  The  language  of  a  high  authority  is  worthy  of 
careful  consideration.  "  Executors  have  no  authority  in  law  to 
carry  on  the  trade  of  their  testator;    and  if  they  do  so,  unless 

1  Collinson  v.  Lister,  20  Beav.  356.  ^  jj, 

2  Kirkman  v.  Booth,  11  Beav.  273.  "  Owen  v.  Delamere,  L.  R.  15  Eq.  134, 

3  Ex  parte  Garland,   10  Ves.  110;   Ex     139. 

parte  Richardson,  3  Madd.  138.  ^  Shearman  v.  Robinson,  L.  R.  15  Ch. 

*  M'Neillie  v.  Acton,  4  De  G.  M.  &  G.     D.  548. 
744.  9  In   re   Morgan,    L.    R.    18    Ch.    D. 

5  Labouchere  v.  Tapper,  11  Moore  P.  C.     93. 
C.  198. 


(a)  See  Willis  v.  Sharp,  113  N.  Y.  586.  insolvent,  the  general  assets  will  be  liable 

{b)  A  testator  may,  however,  bind  his  iu  equity,     Willis  v.  Sharp,  supra.     See 

general  assets  for  all  of  the  debts  incurred  also   Burwell   v.    Mandeville's    Executor, 

in  the  business.     If  such  an  intent  clearly  2  How.  U.  S.  560. 

appear  from  the  will,  and  the  executor  be 


g6Q  THE    LAW    OF    PERSONAL    I'KOPERTY. 

under  the  protection  of  the  Court  of  Chancery,  they  run  great 
risk,  even  although  the  will  contains  a  direction  that  they  should 
continue  the  business  of  the  deceased."  ^ 

3.  Care  and  preservation  of  the  estate.  —  The  principle  govern- 
ing this  class  of  questions  is  that  the  personal  representative 
should  use  the  same  care  that  a  man  of  ordinary  prudence  uses  in 
the  conduct  of  his  own  affairs.  This  rule  may  be  applied  to  the 
following  cases :  — 

(a)  Duty  to  insure.  Somewhat  singularly,  it  has  been  held  that 
an  executor  is  under  no  general  duty  to  insure.^  In  one  of  the 
cases  cited,  two  months  had  elapsed  since  the  expiration  of  the 
insurance,  and  no  insurance  taken.  A  reason  given  in  the  cases 
is,  that  the  insurance  money  is  not  an  asset,  it  being  a  mere 
contingent  claim  in  case  a  misfortune  destroying  the  property 
happens.^ 

(b)  Conversion  of  assets,  and  investments.  There  is  sometimes 
an  implied  duty  to  convert  the  assets  into  money,  even  though 
not  needed  for  the  payment  of  debts, — as,  for  example,  where  they 
are  of  perishable  nature,  (a)  There  are  often  directions  in  the 
will  as  to  conversion,  which  must  be  observed.  The  duty  to  con- 
vert in  such  a  case  depends  upon  the  legal  construction  of  the 
words  used.  Thus,  if  a  testator  should  direct  all  his  property, 
except  ready  money,  or  money  in  the  "  funds,"  to  be  converted 
into  "  money,"  the  word  "  funds  "  would  mean  direct  obligations 
of  the  government,  and  would  not  include  the  bonds  of  another 
country  guaranteed  by  the  government.* 

The  rule  of  law,  as  interpreted  by  the  English  courts,  is  strict 
as  to  investments.  The  general  rule  is  that  the  investment  must 
be  made  in  government  stocks  or  in  mortgages  of  real  estate 
having  value  considerably  in  excess  of  the  sum  loaned.^  If  the 
mvestment  be  properly  made,  the  executor  is  not  in  general  liable 
for  depreciation  in  value,  (b) 

1  Williams  on  Executors,  7th  ed.  ^  jj  ^^^s  said  in  Stickneyi?.  Sewell,  1  M. 
p.   1791.  &  C.  8,  that  the  correct  rule  was  not  to 

2  Bailey  v.  Gould,  4  Y.  &  Colly.  221  ;  advance  more  than  two  thirds  upon  prop- 
Fry  V.  Fry,  27  Beav.  144,  146.  erty  of  permanent  value,  such  as  freehold 

3  Bailey  v.  Gould,  sujira.  land,  not  including  buildings. 
^  Burnie  v.  Getting,  2  Colly.  324. 


(a)  In  many  States  this  subject  is  gov-  estate  securities.    King  v.  Talbot,  40  N.  Y 

erned  by  statute.    See  Woerner  on  Admin-  76  ;  Mills  v.   Hoffman,  26  Hun,  594,  re- 

istration,  §  330.  versed  on  other  grounds  in  92  N.  Y.  181  ; 

ij})  While  the  English  rule  is  not  a  Ormirton  v.  Olcott,  84  N.  Y.  339  ;  Lamar 
part  of  the  common  law,  it  is  an  estab-  r.  Micou,  112  U.  S.452.  In  New  York,  city 
lished  principle  in  several  States  that  in-  securities  are  also  now  an  authorized  in- 
vestments by  executors  and  administrators  vestment,  by  statute.  Laws  of  1889,  ch.  65. 
must  be  confined  to  government  and  real  Investments  even  in  real  estate  mortgages 


TITLE    BY    ACT   OF   THE   LAW.  661 

On  the  other  hand,  if  the  investment  be  unauthorized,  the  ex- 
ecutor must  sustain  the  loss  occasioned  by  depreciation,  but  can 
receive  no  advantage  if  it  turn  out  to  be  profitable.^  A  power 
may  be  conferred  in  the  will  to  loan  upon  "  personal  security,"  or 
to  a  particular  person  named,  in  which  case  the  executors  would 
not  be  liable  for  following  out  the  power.'-^  Such  a  direction, 
framed  in  general  terms,  would  not  permit  a  loan  on  personal 
security  by  one  executor  to  another.-^  The  reason  of  this  is,  that 
the  testator  relied  on  the  "  united  vigilance  "  of  them  both,  and 
his  intent  would  be  defeated  if  one  could  lend  to  the  other.'* 

It  is  a  further  rule  that  the  executor  should,  within  a  reason- 
able time,  convert  the  personal  obligations  of  the  testator  into 
money.  The  fact  that  the  testator  was  content  with  personal 
security  is  no  reason  why  the  executor  should  continue  to  hold  it. 
This  rule  is  affected  by  the  broader  rule  that  it  will  be  enough  if 
the  executor  act  with  reasonable  diligence  and  in  good  faith.^ 
Still,  the  general  rule  remains,  that  if  personal  securities  are  not 
collected,  and  there  is  a  loss  occasioned  by  the  neglect,  the  execu- 
tor is  liable.^  If,  however,  assuming  that  active  measures  had 
been  taken,  the  security  could  not  have  been  collected,  the  execu- 
tor would  not  be  liable,  for  nothing  has  been  lost  by  his  delay .'^ 

The  general  rule  is,  that  the  executor  has  one  year  within  which 
to  convert  into  money  the  assets  which  should  be  sold.  The  rule 
is  not  absolutely  rigid.  The  particular  nature  of  the  property 
must  be  considered,  and  the  attending  circumstances.^  There  is, 
in  some  cases,  a  special  reason  for  selling  stocks  of  banks  and 
other  companies,  owing  to  the  fact  that  a  personal  liability  is 
imposed  upon  the  owner  in  case  of  corporate  insolvency.  If  a 
long  time  should  elapse  before  sale,  and  the  liability  be  incurred, 
the  executor  will  be  answerable,  unless  good  reason  be  given  for 
his  delay .^  So  in  respect  to  closing  the  domestic  establishment 
of  the  testator  and  discharging  servants,  a  reasonable  time  must 
be  allowed.^^ 

1  Knott  V.  Cottee,  13  Beav.  77.  ^  Bullock  v.  Wheatley,  1  Colly.  130; 

2  Parker  v.  Bloxam,  20  Id.  295.  Caney  v.  Bond,  6  Beav.  486. 

3  V.  Walker,  5  Russ.  7.  "^  East  v.  East,  5  Hare,  343,  348. 

*  Id.  8  Hughes  v.  Empson,  22  Beav.  181. 

*  Buxton  V.  Buxton,  1  M.  &  C.  80  ;  »  GraybiTrn  v.  Clarkson,  L.  R.  3  Ch. 
Marsden  v.  Kent,    L.  R.    5   Ch.  D.   598     App.  605. 

(C.  A.).  It*  Field  v.  Beckett,  29  Beav.  576. 


outside  the  State  will  not  usually  be  up-  and  administrators  to    employ   the   same 

held.     Ormiston  v.  Olcott,  supra.  care  and  prudence  in  making  investments 

In  other  States  the  rule  is  less  strict ;  as  a  prudent  and  cautious  man  would  use 

but  it  is  universally  considered,  as  stated  in  the  management  of  his  own  property.   40 

in  the  text,  to  be  the  duty  of  executors  Am.  Dec.  506,  n. ;  Lamar  v.  Micou,  supya. 


662  THE  LAW  OF  PERSONAL  PROPERTY. 

(e)  Liability  for  ivaste.  As  a  rule  of  law,  an  executor  is  liable 
for  "  waste  "  of  the  assets.  This  is  technically  termed  a  devas- 
tavit. It  may  occur  by  neglect,  such  as  a  failure,  without  good 
cause,  to  observe  the  rules  already  considered,  or  it  may  be  caused 
by  wrongful  acts  of  a  wilful  nature,  injurious  to,  or  destructive  of, 
tbe  estate.  Such  waste  may  also  be  charged  upon  one  who  is  in 
privity  with  the  executor  in  the  wrongful  act.  From  this  point  of 
view,  it  is  the  duty  of  an  executor  to  keep  accounts.  They  should 
be  clear  and  distinct,  and  not  mingled  with  his  private  accounts.^ 
A  legatee,  for  example,  has  a  right  to  an  inspection  of  the  ac- 
counts,^  and  it  is  reasonable  to  maintain  that  they  should  be  in  a 
condition  fit  for  convenient  inspection.  An  executor  should  also 
deposit  the  money  of  the  estate  with  a  banker,  separate  from  his 
own.  The  rule  does  not  mean  merely  keeping  a  separate  account 
of  the  trust  money,  but  having  such  an  account  entered  on  the 
banker's  books  in  his  name  as  executor,  or  its  equivalent.  A  non- 
compliance with  this  rule  might  subject  him  to  personal  liability 
in  case  of  the  banker's  failure,  (a)  He  might  also  be  liable  if  he 
left  an  unreasonable  amount  for  a  considerable  time  on  deposit, 
even  though  properly  entered.  It  may  be  reasonable  for  an  ex- 
ecutor to  keep  an  amount  of  money  on  hand  to  meet  bills  that 
may  be  presented.  If  so,  he  will  be  protected.  When  the  amount 
of  the  deposit  is  beyond  the  requirements  of  the  estate,  he  may 
be  liable  for  the  failure.^  He  may  also  be  liable  for  the  misfeas- 
ance of  his  agents,  such  as  a  clerk,*  also  of  a  solicitor,  in  some 
instances.^ 

An  important  and  difficult  question  is  presented  at  this  stage 
of  the  discussion,  as  to  the  circumstances  under  which  an  execu- 
tor is  liable  for  the  waste  or  embezzlements  of  a  co-executor, 
though  not  a  participant  in  the  wrong.  Where  there  are  several 
executors,  one  or  more  of  them  may  be  active,  and  others  passive. 
If  the  active  executor  waste  the  assets,  the  passive  one  is  not 
liable,  unless  there  be  some  special  circumstances.  (6) 

First.   It  is  quite  plain   that   if  he  concur  in  an   act  of  his 

1  Freeman  v.  Fairlie,  3  Mer.  29,  40.         Swinfen  v.  Svvinfen,  29  Beav.  211  ;  Jolm- 

2  Ottley  V.  Gilby,  8  Beav.  602.  son  v.  Newton,   11  Hare,   160  ;   Wilks  v. 
s  Cases  in  which  the  executor  was  held     Groom,  3  Drew.  584  ;  Finch  v.  Llarcou,  40 

liable  are  Moyle  v.  Moyle,  2  Russ.  &  M.  L.  J.  (Ch.)  537. 

710;  Lowry«.  Fulton,  9  Sim.  115;   Ast-  *  Kilbee  t\  Snevd,  2  Moll.  186. 

bury  V.  Beasley,  17  W.  R.  638.     Cases  in         5  Gilroy  v.  Stephens,  51  L.  J.  (Ch.  D.) 

which  he  was  declared  not  to  be  liable  are,  834. 


{a)  Summers  v.    Reynolds,    95   N.  C.     Cocks    v.    Haviland,     124    Id.    426;    De 
404  ;  Williams  v.  Williams,  55  Wis.  300.       Haven  v.  Williams,  80  Pa.  St.  480 ;  Eng- 
[h)  Nanz   v.   Qakley,    120    N.   Y.    84;     lish  v.  Newell,  42  N.  J.  Eq.  76. 


TITLE    BY   ACT    OF    THE    LAW.  663 

associate,  simply  because  bis  concurrence  is  made  indispensable 
by  law,  he  is  not  liable. ^ 

Second.  If  one  executor  take  possession  of  the  assets,  and  then 
intrust  them  to  another  to  be  managed,  the  former  is  liable.^  {a) 

Third.  Any  wilful  neglect  or  default  on  the  part  of  the  passive 
executor  will  make  him  responsible,-^  {b)  —  such  as  allowing  a  part 
of  the  estate  to  remain  outstanding  in  an  improper  state  of  in- 
vestment.* The  passive  executor,  when  called  upon  to  do  an  act 
which  is  claimed  to  be  indispensable,  should  make  due  inquiry.^ 

Fourth.  If  a  passive  executor  does  an  act  (not  being  necessary) 
which  enables  a  co-executor  to  obtain  control  of  the  assets,  he 
will  be  liable  for  misapplication.^  This  rule  could  not  be  applied 
to  a  case  where  one  executor  had  securities  in  a  box,  of  which  he 
supposed  himself  to  have  exclusive  control,  while  his  co-executor 
also  had  a  key,  and,  by  means  of  it,  without  the  knowledge  of  the 
former,  withdrew  securities,  and  misapplied  them." 

Fifth.  The  act  of  joining  in  a  receipt  with  the  defaulting  execu- 
tor is  evidence  of  joint  control,  and  tends  to  show  that  the  other 
surrendered  possession  of  assets.  It  is  not,  however,  conclusive 
evidence,  (c)  The  real  inquiry  is,  whether  the  passive  executor 
had  control,  and  so  surrendered  it.  If  so,  he  is  liable,  but  not 
otherwise.'' 

There  is  sometimes  found  in  the  will  a  clause  to  the  effect  that 
each  executor  shall  only  be  liable  for  his  own  default,  and  not 
for  concurring  in  an  act  to  enable  his  associate  to  receive  funds, 
etc.,  for  the  purposes  of  the  will.  This  is  called  an  "  indemnity 
clause,"  and  will  furnish  protection,  unless  there  be  gross  neglect 
or  personal  misconduct.^ 

The  present  judicial  mode  of  stating  the  executor's  liability  is, 
that  it  is  equivalent  to  that  of  a  gratuitous  bailee,  and  that  he 
cannot  be  made  liable,  except  for  ivilfid  default.^^  When  the 
courts  expound  the  phrase  "  wilful  default,"  it  is  said  that  it  does 
not  mean  deliberate  or  intentional   default  alone,  but  includes 

1  Terrell  v.  Matthews,  5  Jur.  1074.  ^  Candler  i;.  Tillett,  22  Beav.  257. 

2  Townsend   v.  Barber,    1   Dick.   356  ;  7  Id. 

Langiord   v.   Gascoyne    11  Ves.    333  :  Cf.           »  Doyle  v.  Blake,  2  Sch.  &  Lef.   230, 

Cov,'ell  V.  Gatcombe,  27  Beav.  568.  242. 

3  Styles  i;.  Guy,  1  Mac.  &  G.  422.  »  Wilkins  v.  Hogg,  3  GifiF.  116;  Pass 

4  Lincoln  v.  Wright,  4  Beav.  427.  v.  Dundas,  29  W.  R.  332. 

*  Harrington   v.    Harrington,   1   L.   J.         lo  Job  v.  Job,  L.  R.  6  Ch.  D.  562. 
(Ch.)  41.  

(a)  Bruen  u.  Gillet,  115  N.  Y.  10.  tors,  79  Va.  524;  Hinson  v.  Williamson, 

(h)   Wilmerding     v.     McKesson,     103  74  Ala.  180. 
N.  Y.  3'29  ;  Matter  of  Niles,  1-13  Id.  547  ;  (c)  Wilson's  Appeal,  115  Pa.  St,  95. 

MCormick's  Executors  v.  Wright's  Execu- 


gg4  THE  LAW  OF  PERSONAL  PEOPERTY. 

imprudence  or  negligence,  if  unexciised.i  Under  existing  statute 
law  in  England  (Conveyancing  Act  of  1881),  it  would  seem  that 
an  executor  is  only  liable  for  delay  in  collecting  his  testator's 
debt  when  he  does  not  act  in  good  faith.2 

One  mode  in  which  the  neglect  of  an  executor  is  corrected  is  by 
charging  him  interest  on  money  under  his  control.  This  prin- 
ciplc°  is°particularly  applicable  to  cases  where  an  unreasonable 
amount  lies  idle  and  uninvested  at  a  bank.  Simple  interest  is 
commonly  charged,  where  no  profit  has  been  made  by  miscon- 
duct.3  (^a)  An  executor  may,  in  general,  avoid  responsibility  by 
depositing  temporary  balances  in  a  trust  company,  authorized  by 
law  to  receive  them. 

In  some  instances  compound  interest  will  be  charged,  as  where 
an  executor  has  used  the  money  of  the  estate  for  his  own  benefit, 
or  where  he  has  been  directed  to  invest,  and  he  has  failed  to  fulfil 
the  direction,  —  as  where  he  had  been  directed  to  accumulate  a 
fund  for  infants.*  (b)  Where  the  executor  has  used  the  money  in 
his  own  business,  he  is  presumed  to  have  made  the  profits  usual  in 
the  business,  and  is  made  to  pay  compound  interest.  A  charge 
of  compound  interest  is  only  made  by  the  court  in  extraordinary 
cases.^ 

IV.  Judicial  proceedings.  —  (1)  Administration  suits.  A  pro- 
ceeding for  this  purpose  may  take  place  either  in  a  court  of  equity, 
or,  to  some  extent,  before  a  court  of  probate.  The  former  tri- 
bunal has  the  more  full  and  complete  power  over  the  subject, 
as  it  is  a  court  of  general  jurisdiction,  while  that  of  the  probate 
court  is  limited,  though  at  the  present  time  generally  much  en- 
larged by  statute. 

It  is  not  the  object  of  this  work  to  consider  questions  of  pro- 
cedure in  detail.  The  general  object  of  the  suit  in  equity  is  to 
discover  assets,  and  in  connection  with  that  to  obtain  a  decree 
to  pay  debts  and  legacies.     The  regular  course  for  a  creditor  is  to 

1  Connolly  v.  Connollj',  17  Ir.  Ch.  R.  Burdick  v.  Garrick,  L.  R.  5  Ch.  App.  233. 
208  ;   Elliott  v.   Turner,    13    Sim.    477  ;  The  ground  of  the  decision  is,  that  he  ought 
Rowley  v.  Adams,   2  H.  of  L.  Cas.   725.  to  have  received  interest,  and  is  therefore 
In  this  case  it  was  decided  that  there  was  conclusively  presumed  to  have  received  it. 
no  wilful  default.  *  Raphael  v.  Bcehm,  13  Ves.  407. 

2  Be  Owens,  47  L.  T.  61.  5  Burdick  v.  Garrick,  L.  R.  5  Ch.  App. 
^  Atty-Gen'l  v.  Alford,  4  De  G.  M.  &  G.     233  ;  Jones  v.  Foxall,  15  Beav.  388. 

843  ;  Johnson  v.  Prendergast,  28  Beav.  480  ; 


(a)  Pickens  v.  Miller,   83  N.  C.  543  ;  (b)  Eliott   v.  Sparrell,  114   Mass.  404  ; 

Frost  V.  Denman,  41  N.  J.  Eq.  47  ;  Lent  Jennison  v.  Hapgood,  10  Pick.  77  ;  Matter 

V.  Howard,  89  N.  Y.  169;    Remington  v.  of  Kernochan,  104  N.  Y.  618;  Hannahs 

Walker,  99  N.  Y.  626  ;  White  v.  Ditson,  v.   Hannahs,  68  Id.  610  ;  Cruce  v.  Cruce, 

140  Mass.  351.  81  Mo.  676. 


TITLE    BY    ACT    OF   THE   LAW.  665 

proceed  against  the  executor  for  an  accounting,  and  not  directly 
against  a  debtor  simply ;  but  he  may,  in  the  case  of  collusion  between 
the  debtor  and  the  executor,  proceed  against  both,^  The  question 
whether  collusion  exists  depends  on  all  the  circumstances.  The 
general  rule  that  the  debtor  cannot  be  made  a  party  defendant  with 
the  executor  is  established  by  many  decisions.^  The  underlying 
principle  is  that  the  personal  representatives  are  the  proper  per- 
sons to  sue,  and  persons  interested  in  the  estate  should  not  be 
allowed  to  sue,  unless  there  be  danger  that  there  will  be  some 
loss  to  the  estate.^  Special  circumstances  must  be  shown.^  A 
creditor  desiring  to  affect  real  estate  should  sue  in  behalf  of 
himself  and  all  other  creditors,^  unless  the  testator  had  conferred 
a  power  of  sale  upon  executors,^  though  this  remark  does  not 
apply  to  personal  estate  in  the  English  courts  since  the  statute 
cited  in  the  note.' 

After  the  court  has  decreed  that  the  executor  shall  account, 
the  account  will  be  taken  before  the  proper  officer  of  the  court,  in 
some  States  called  a  "  master  "  and  in  others  a  referee.  Credi- 
tors will,  on  proper  proceedings,  be  restrained  by  an  injunction 
from  bringing  independent  actions.^  The  effect  of  this  course  of 
proceedings  is  that  the  creditors  will  bring  in  their  claims  before 
such  master  or  referee,  and  all  the  questions  will  be  disposed  of 
in  one  action.  The  injunction  may  now  be  obtained  on  motion.^ 
An  injunction  will  not  be  granted  to  prevent  a  creditor  from  pro- 
ceeding against  the  executors  personally.^*^  The  ground  on  which 
an  injunction  is  granted  is  that  relief  can  be  obtained  by  any 
creditor  in  the  general  creditor's  suit ;  if  that  is  not  true,  no  in- 
junction will  be  granted.ii  The  same  principle  will  be  applied  to 
prevent  a  creditor  from  suing  in  a  foreign  court.^^  The  general 
principles  governing  the  granting  of  an  injunction  are  stated  in 
the  case  of  Pennell  v.  Roy.^^  The  court  has  the  power  to  appoint 
a  receiver  (an  officer  of  the  court)  to  take  charge  of  the  property 
pending  the  litigation.^*     In  some  instances  concurrent  suits  have 

1  Doran  v.  Simpson,  4  Ves.  651 ;  Alsa-  ^  Goate  v.  Fryer,  2  Cox  Eq.  201. 
ger  V.  Rowley,  6  Id.  748.  ^  Paxton  v.  Douglas,  8  Ves.  520. 

2  Elmslie  v.  M'Aulay,  3  Bro.  C.  C.  624.  ^^  Keut  v.  Pickering,  5  Sim.  569  ;  Bur- 

3  Staintou  v.  The  Carron  Co.,  18  Reav.  les  v.  Popplewell,  10  Id.  383. 

146.  ^^  Costerton  v.  Costerton,  2  Keen,  774  ; 

•*  Yeatman  v.  Yeatman,  L.  R.  7  Ch.  D.  AVhitaker  v.  Wright,  2  Hare,  310. 
210.  ^^  Graham  v.  Maxwell,  1  Mac.  &  G.  71  ; 

5  Ponsford  v.  Hartley,  2  Johns.  &  H.  Hope  v.  Carnegie,  L.  R.  1  Ch.  App.  320. 
736.  Not  applied  to  a  foreign  creditor  resident 

6  Worraker  V.  Pryer,  L.  R.  2  Ch.  D.  109.  abroad.     Re  Boyse,  L.  R.  15  Ch.  D.  -591. 

7  38  &  39  Vict.  c.   77,  Ap.  A,  Part  2,         i3  3  De  G.  M.  &  G.  126. 

§  1 ;  Cooper  v.   Blissert,  L.  R.  1  Ch.  D.        "  Rendall  v.  Rendall,  1  Hare,  152. 
691, 


666  THE    LAW   OF   PERSONAL   PROPERTY. 

been  brought,  each  of  which  is  so  framed  as  to  be  for  the  benefit 
of  all  the'^creditors.  The  court  may  give  the  preference  to  the 
one  which  is  so  framed  as  to  give  the  most  broad  and  compre- 
hensive relief,  even  though  commenced  later  in  point  of  time,  and 
stav  proceedings  in  others. ^ 

A  foreio-n  executor  may  be  held  to  account  in  the  courts  of 
equity  of  any  State  in  which  he  may  happen  to  be  found,  on  the 
general  rule  of  equity  that  its  jurisdiction  follows  the  person  of 
the  defendant. 

After  the  preliminary  decree  to  account,  the  creditors  and  other 
persons  interested  appear  before  the  master  or  referee  and  pre- 
sent their  claims,  and  have  power  to  investigate  the  executor's 
accounts.  When  the  examination  is  completed,  a  "  report"  is  made 
to  the  court.  Any  interested  party  not  satisfied  with  the  report 
may,  under  the  rules  of  the  court,  make  exceptions  to  it.  The 
whole  matter  is  then  heard  by  the  court  upon  the  exceptions, 
whereupon  the  report  will  be  confirmed  or  disallowed,  either  in 
whole  or  in  part,  as  may  be  deemed  just.  Reference  to  authorities 
upon  the  practice  is  made  in  a  note.^ 

(2)  Administration  in  the  probate  courts.  The  present  practice 
in  the  various  States  of  this  country  is,  for  the  most  part,  to  deal 
with  the  subject  in  the  probate  courts,  whose  jurisdiction,  as  it 
formerly  existed,  has  been  greatly  enlarged.  Such  an  enlargement 
does  not  of  itself  abrogate  the  former  power  of  the  courts  of  equity, 
but  for  the  most  part  makes  a  resort  to  them  unnecessary,  (a)  This 
statutory  system  is  not  uniform.  The  practical  result  is,  that  the 
statutes  of  each  State  must  be  consulted  as  to  a  case  arising  there. 
The  statutes  regulating  the  practice  in  the  surrogate's  courts  of 
New  York  are  to  be  found  in  the  Code  of  Civil  Procedure.^ 

The  conduct  of  an  executor,  etc.,  is  to  such  a  degree  a  matter  of 
trust  that  in  case  of  certain  acts  of  misconduct  he  may  be  removed 
from  ofhce,  his  letters  revoked,  and,  if  necessary,  an  administrator 
appointed  in  his  place.  In  New  York,  the  grounds  of  revocation 
of  letters  are  enumerated  in  a  statute.* 

1  Hawkes  v.  Barrett,  5  Madd.  17-  Equity  Index   (4th  ed.),  Tit.  Executors, 

2  See    2    Smith's    Chancery    Practice,     etc.,  pp.  2428-2525. 

chapters  29-37 ;  1  Story's  Eq.  Jur.  chapters  ^  Qq^^  ^f  Qy  Pro.  §§  2706-2748. 

9   &   10.     A  full    collection   of   English         «  Id.  §§  2685-2693. 
authorities  will  be   found  in  3   Chittv's 


(a)  See  in  Xew  York  Chipman  1-.  Mont-  Barnes,  28  Abb.  X.  C.   401;   Sanders  v. 

gomery,  63  N.  Y.  221  ;    Wager  r    Wager,  Soutter,  126  N.  Y.  193.     Where  juiisdic- 

89  N.  Y.  161  ;  Hard  v.  Ashley,  117  X.Y.  tion  is    obtained   for  a   special   purpose, 

606.    An  action  in  equity  against  an  execu-  equity  may   retain   the  case,   and   decree 

tor  for  an  accounting  will  not  be  enter-  a  complete   settlement   and   distribution, 

tained  unless   complete  relief  cannot  be  Sanders  v.  Soutter,  supra. 
had   in  the   surrogate's  court.     Blake  v. 


TITLE    BY   ACT   OF   THE   LAW.  667 

V.  Ancillary  administration. — The  expression  "  ancillary,"  as 
here  used,  means  "  subordinate,"  and  implies  a  principal  adminis- 
tration otherwise  granted.  It  grows  out  of  the  fact  that  letters 
testamentary  or  of  administration  granted  in  any  particular  State 
or  country  have  only  a  local  effect.  A  local  executor  cannot  bring 
actions  or  enforce  claims  in  other  States  or  countries. 

It  is  a  rule  dictated  by  the  so-called  "  comity  of  States  or  nations  " 
to  recognize  the  substantive  rights  created  in  decedent's  estates 
by  the  law  of  the  domicile.  The  actual  administration  of  the  assets 
found  in  any  particular  State  is  vested  in  the  courts  of  the  State 
where  such  assets  are  situated.  Such  administration  is  "  ancil- 
lary." After  the  administration  of  these  assets  is  completed,  any 
surplus  remaining  is  remitted  to  the  courts  of  the  decedent's 
domicile,  under  the  direction  of  the  probate  court  or  the  courts 
of  chancery  of  the  State  where  the  assets  are  administered.^  The 
principle  is  stated  in  the  case  cited  in  the  following  terms  :  "  By 
the  law  of  England  [common  law]  the  person  to  whom  adminis- 
tration is  granted  by  the  ecclesiastical  court  is  by  statute  bound  to 
administer  the  estate,  and  to  pay  the  debts  of  the  deceased.  The 
letters  of  administration,  under  which  he  acts,  direct  him  so  to 
do,  and  he  takes  an  oath  that  he  will  well  and  truly  administer 
all  and  every  the  goods  of  the  deceased,  and  pay  his  debts  so  far 
as  the  goods  will  extend,  and  exhibit  a  full  and  true  account  of  his 
administration.  That  such  are  the  duties  of  an  executor  ....  is 
certain,  although  the  testator  or  intestate  may  have  been  domiciled 
elsewhere.  The  domicile  regulates  the  right  of  succession^  but  the 
administration  must  be  in  the  country  in  which  possession  is  taken 
and  held,  under  lawful  authority,  of  the  property  of  the  deceased."  ^ 

In  the  case  of  Enohin  v.  "Wylie,^  there  are  remarks  by  Lord 
"Westbury,  which  are  apparently  in  conflict  with  the  views  above 
stated,  and  which  deny  to  the  courts  of  the  state  or  jurisdiction 
where  the  assets  are  situated,  the  power  to  administer  the  local 
assets  in  an  administration  suit.  These  remarks  were  really 
dicta,  and  were  not  concurred  in  by  the  other  judges.  The  dicta 
of  the  Lord  Chancellor  have  been  disapproved  in  later  cases.^ 
If  the  same  persons  who  have  the  principal  administration  are 
also  appointed  ancillary  administrators,  and  are  present  in  the 
country  where  the  assets  are  situated,  and  are  served  there  with 
process  in  an  administration  suit  in  equity,  and  they  take  no  steps 
to  set  it  aside,  the  court  has  jurisdiction  to  determine  the  whole  sub- 

1  Preston  v.  Melville,  8  CI.  &  F.  1,  12-  3  iq  H.  of  L.  Cas.  1. 

14.  *  See  In  re  Orr  Ewing,  L.  R.  82  Ch. 

2  Preston  v.  Melville,  s^qyra,  pp.  12,  D.  456,  468,  per  Cottox,  L.  J.  ;  (on  ap- 
13.  peal),  L.  R.  9  App.  Cas.  34. 


Pgg  THE   LAW   OF   PERSONAL   PROPERTY. 

iect  of  administering  the  assets  wherever  situated.  This  is  on  the 
o-eneral  ground  that  the  jurisdiction  of  a  court  of  equity  follows  the 
person.  °The  rule  was  applied  to  the  administration  in  England  of 
the  entire  assets  of  a  testator  domiciled  in  Scotland,  hut  having  a 
small  portion  of  his  personal  estate  situated  in  England.^ 

This  subject  is  regulated  in  New  York  by  statute.  In  substance 
it  is  a  digest  of  the  principles  already  stated.^  Under  the  statute, 
the  duty  of  the  court  in  granting  ancillary  administration  is  made 
imperative,  when  certain  specified  steps  have  been  taken.  The 
local  court  takes  an  account  as  nearly  accurate  as  possible  of 
debts  due  residents  of  this  State,  and  the  applicant  for  letters 
may,  in  the  discretion  of  the  surrogate,  be  required  to  give  a 
bond  which  will  effectually  secure  the  payment  of  the  debts.  The 
surrogate  may  order  them  to  be  paid  out  of  the  assets,  or  a  proper 
percentage  on  them,  if  the  estate  is  insufficient  to  make  payment 
in  full.  Any  surplus  must  be  remitted  to  the  State  or  country 
where  the  principal  letters  were  granted.^ 

Under  the  head  of  title  hy  contract  would  belong  gifts,  as  well  as 
contracts  ordinarily  so  termed.  One  form  of  gift,  donatio  causa 
mortis,  in  some  respects  resembles  a  legacy.  Still,  it  is  radically 
distinguished  from  a  legacy  in  the  fact  that  it  does  not  pass  to  an 
executor,  and  is  made  to  take  effect  in  the  testator's  lifetime.  It 
will  on  this  account  not  be  considered  in  this  connection. 

The  topic  of  "  title  by  contract  "  is  at  once  so  vast  and  varied 
that,  in  carrying  out  the  scope  of  this  work,  which  is  more  properly 
an  introduction  to  the  law  of  contracts,  it  will  not  be  expedient 
to  consider  it.  It  is  enough  to  mention  it  here  for  the  sake  of 
completeness. 

1  Ewing  V.  Orr  Evving,  L.  R.  9  App.  2  Code  of  Civ.  Pro.  §§  2694-2702.     .    . 

Cas.  34,  45,  46.     Scotland  was  treated  as         3  id.  §§  27OO,  2701. 
a  foreign  jurisdiction. 


INDEX. 


INDEX. 

[refkeences  are  to  pages.] 


ABANDONMENT, 

of  personal  property 431 

of  property  at  sea 479 

of  invention  as  affecting  patentability 511,  524,  539 

ABATEMENT, 

of  legacies 619-621 

of  actions,  survival  and 649 

ABRIDGMENTS   AND   DIGESTS 26 

ACCELERATION   OF   LEGACIES, 

what  is 615 

ACCESSION, 

as  a  means  of  acquiring  title  to  personal  property 481-486 

young  of  domestic  animals 481 

additions  by  labor  or  by  use  of  new  material 481-486 

remedies  where  addition  is  made  wrongfully 484 

as  affecting  right  of  United  States  against  persons  cutting  timber    .     485 

ACCOUNT, 

duty  of  guardian 282 

method  of  making  up  of  guardian's 282 

ACKNOWLEDGMENT, 

of  married  woman  to  conveyance 207-210 

ACT   OF   SETTLEMENT, 

provisions  of 48,  49 

led  to  passage  of  Tenure  of  Judicial  Office  Act 49 

ACTIONS   IN  PERSONAM, 

in  admiralty  for  injuries  causing  death 252 

judgments  in 560,  561 

survival  of,  to  or  against  executor,  etc 649 

against  executor  on  testator's  contract 651 

ACTIONS   TN  REM. 

in  admiralty  for  injuries  causing  death 252,  253 

judgments  in 561,  562 

proceedings  to  cause  a  forfeiture  are        557 

ADEMPTION   OF   LEGACIES, 

what  is 621-624 

distinction  between  it  and  satisfaction 623 

satisfaction  of  legacies 620-627 

(See  Legacies.) 


^72  INDEX. 

[References  are  to  Pages.] 

ADMINISTRATION, 

letters  of 645,646 

cum  testamento  annexo 645 

de  bonis  non 64o 

durante  minore  cetate 646 

pendente  lite 646 

durante  animi  vitio 646 

to  -whom  granted 603 

suits  for 664-666 

in  Probate  Court 666 

ancillary -     •       667,  668 

of  decedent's  estate.    (See  Executor  axd  Administrator.) 

ADMINISTRATOR. 

(See  Executor  and  Administrator.) 

ADMIRALTY, 

trial  by  jury,  provisions  of  Magna  Charta  respecting,  did  not  extend 

to 46 

criminal  jurisdiction,  how  far  extends 122 

death  caused  by  injuries  committed  on  high  seas,  jurisdiction  as  to  .     253 

actions  in  rem  for  injuries  causing  dei>th 252,  253 

Lord  Campbell's  Act  not  applicable  in 253 

relation  to  civil  law  of  Admiralty  and  Maritime  Jurisdiction       .     .     254 

rule  of,  when  injury  caused  by  co-servant 333 

rule  of  respondeat  superior  not  applicable  in 339 

pilot's  negligence,  liability  of  owner  of  ship  for 339 

droit  as  applied  to  wrecks 478,  480 

jurisdiction  of,  over  derelicts 478-480 

derelict  defined  under  law  of 478-480 

salvage  allowed  in  case  of  derelict 479,  480 

jurisdiction  of  courts  as  to  property  found  at  sea  or  on  the  sea- 
shore        478-480 

forfeiture  as  applied  to 557 

judgments  in  rem  in 561 

ADOPTION, 

of  children  under  Roman  law  and  by  statute 266,  267 

ADVANCEMENTS, 

to  descendants 640-642 

"  hotchpot " 640 

to  a  wife 642 

doctrine  of  "  collation  of  goods  "  under  Roman  law 640 

meaning  of  the  word  "  thirds  "  as  used  in  settlements  or  wills  .     .     642 

AGENT, 

defined;  contrasted  with  servant 323 

of  foreign  government,  holding  funds  of,  may  be  sued  when   ...     379 
of  a  State,  when  may  be  sued  for  acting  under  State  law  .     .       380,  381 

ALIENATION   OF    AFFECTION, 

suits  for,  by  husband  or  wife 213,  225 

ALIENS, 

acquisition  of  land  by 132-136 

by  purchase 132 

meaning  of  purchase 132 

title  good  against  every  one  but  State 132 


INDEX.  673 

[References  are  to  Pages.]] 

ALIEXS  —  continued. 

inquest  of  office  and  office  found 1.32 

under  equitable  conversion 1.32    133 

title  of  citizen  derived  from  alien 132 

interest  in  rents  where  laud  inalienable 132 

by  descent 134 

through  intermediate  alien  ancestor 134 

in  case  of  tenancy  by  entirety 135 

inheritance  from  brother,  father  being  an  alien     ....     134. 

as  affected  by  treaties 135 

as  affected  by  statutes  of  States 135 

in  Territories  and  District  of  Columbia 13G 

copyright,  rights  to  under  United  States  laws 488,  493,  495 

enemy,  disabilities  of 137 

no  standing  in  our  courts 137    138 

contract  with  citizen  illegal 138 

contract  made  before  war  suspended 138 

members  of  foreign  corporation  presumed  to  be 377 

trade  mark,  protected,  as  well  as  citizen's,  in  the  use  of      ....     543 

who  are,  under  American  law 121 

(See  Citizen;  Citizenship;  Naturalization;  Expatriation.) 
ALIMONY, 

pendente  lite 164-166 

permanent 171-173 

(See  Divorce.) 
ALLEGIANCE, 

test  of  citizenship 119-121 

of  postnati  and  antenati 120,  121 

local  defined 121 

jurisdiction  of  country  seaward,  as  to  local 122 

local;  as  to  foreign  ship  of  war  in  domestic  waters 123 

local,  when  offender  pleads  command  of  sovereign 123 

local,  when  crime  the  result  of  cause  set  in  motion  in  another  State    .     122 

extent  of  control  over  those  owing  permanent 124 

(See  Citizenship;  Exterritoriality.) 
ALTER   EGO, 

in  law  of  master  and  servant 332 

AMALGAMATION, 

or  consolidation  of  corporations,  defined 403,404 

AMBIGUITY, 

in  a  will,  extrinsic  evidence  admissible  to  remove 606 

distinction  between  latent  and  patent  discarded 600 

uncertainty  as  distinguished  from,  extrinsic  evidence  not  admissible 
to  remove 606,  607 

amend:\ients, 

to  United  States'  Constitution,  do  not  affect  States,  except  XIII., 

XIV.,  and  XV 42,50,54,67,70 

theories  of  Magna  Charta  adopted  in  Fifth  Amendment      ....       46 

bind  Territories  and  District  of  Columbia 50,  51 

meaning  of  "due  process  of  law  "  as  found  in  Fifth      ....      68,  69 
meaning  of  "  excessive  bail  and  fines,"  etc.,  as  used  in  Eighth    .      69-71 

43 


gy4  INDEX. 

[References  are  to  Pages.] 

AMENDMENTS  —  con/mt/e(/. 

meaning  of  "  common  law  "  as  used  in  Seventh 71 

does  not  include  equity ''1 

nor  Admiralty '^1 

Fourteenth,  first  and   fifth  sections  of,  considered       ....      72-77 
(See  Citizen;  Due  Process  of  Law,  Police  Power;  Civil  Rights.) 
Fourteenth,  power  of  Federal  Courts  to  issue  habeas  corpus  under,  to 

bring  up  prisoner  held  under  State  authority 102 

privileges  and  immunities  of  citizens  under  Fourteenth       .    130,  131,  353 

involuntary  servitude  under  Thirteenth 314 

privileges  and  immunities  in,  does  not  refer  to  corporations     .     .     .     353 

Eleventh  to  U.  S.  Constitution  considered 380 

to  statutes.     (See  Statute  Law.) 
AMOTION, 

of  officers  of  corporations 360-362,  365 

(See  Corporations.) 
ANCILLARY   ADMINISTRATION 667,  668 

ANIMALS, 

ownership  of,  wild  and  domestic 421,  •419-456 

ownership  in,  as  affected  by  law  of  nuisances 451 

liability  of  owner  of  for  damage  caused  by 452 

scienter,  sale  of  infected  animals,  etc 453 

statutes  for  the  protection  of  wild 451,  481 

acquisition  of  title  to  wild 449-451,  481 

ownership  of  young  of  domestic 481 

ANNULMENT, 

of  marriage.     (See  Divorce.) 

ANTENATI  AND  POSTNATI  CITIZENS, 

who  are 120,  121 

APPOINTMENT, 

by  married  woman  of  separate  estate 199 

APPORTIONMENT, 

of  payments  on  death  of  a  life  tenant 619 

APPRENTICESHIP, 

American  law  as  to 319-322 

voluntary,  method  of  creation 319 

rights  of  master  and  apprentice 319-321 

rights  of  father 321 

dissolution 322 

compulsory,  under  American  poor  laws 322 

defined,  kinds  of 315-323 

English  law  as  to 316,  318 

voluntary,  method  of  creation 316 

rights  and  duties  of  master  and  apprentice  ....       317,  318 

remedies  for  breach  of  agreement 318 

dissolution 318 

compulsory,  under  English  poor  laws 318 

when  infant  bound  by  indenture 296,  315,  319 

ARMS, 

right  to  keep  and  bear 57,  58 

prohibition  as  to  concealed 58 


INDEX.  675 

[References  are  to  Pages."] 

ARMY   A:N^D   navy, 

eulistineut  by  infants  in 296 

ASSAULT   AND   BATTERY, 

defined,  in  civil  and  criminal  law 78,  79 

when  mayhem  at  common  law        79 

by  child  committed  in  defence  of  parent 250 

by  servant ;  liability  of  master 340 

by  servant  in  defence  of  master 345 

ASSETS, 

what  are,  of  a  decedent's  estate 648 

distinction  between  legal  and  equitable 648 

real  estate  as 651-654 

ASSIGNMENT, 

of  author's  interest  in  unpublished  works 501 

of  copyright 502 

of  unpatented  invention 524 

of  patent 525,  526,  531 

of  a  trade-mark 547-549 

ASSIGNMENT   FOR   CREDITORS, 

by  corporations  ...  384 

voluntary  assignments 562-565 

preferential 562-565 

non-preferential 565 

preference  of  the  United  States  Government 564 

composition  deeds 565,  5G6 

distinction  between  a  concession  by  a  single  creditor  and  one  by  two 

or  more 565 

validity  of 563-565 

when  void  as  a  matter  of  law 563 

when  void  for  "extrinsic"  reasons 563 

New  York  Statute  regulating 563,  564 

effect  of 565 

assignee  is  tifustee  for  creditors  and  liable  as  such 565 

non-preferential 565 


BAIL, 

and  fines  excessive,  meaning  of  as  used  in  Eighth  Amendment    .     .  69 

defined  as  used  in  Eighth  Amendment 70 

constitutional  provision  as  to,  operates  on  Congress  as  well  as  Execu- 
tive and  Judiciary 69 

sum  fixed  should  not  be  so  large  as  to  prevent  giving 70 

BAILMENT, 

defined     455,  456 

BAILOR   AND   BAILEE, 

doctrine  of  respondeat  superior  in  use  of  property  not  applicable   .     .     342 
respective  interest  of 455 

BANKRUPT   STATUTES   OF   THE   UNITED    STATES  .     .     .  568-577 


575  INDEX. 

[References  are  to  Pages.J 

BANKRUPTCY  AND  INSOLVENCY, 

origin  of  laws  of 567,  568 

power  of  Congress  to  pass  laws  as  to 568,  569 

proceedings  under  former  United  States  bankrupt  law  ....  569-577 

the  court  having  direct  jurisdiction  and  its  officers 569 

voluntary  bankruptcy 569,  570 

involuntary 570 

proceedings  to  realize  the  estate 570,  573 

proceedings  peculiar  to  partnerships  and  corporations  .     .       573,  574 

the  discharge 574,  575 

vests  debtor's  property  in  the  court 571 

conveyance  by  register  to  assignee  in 571 

corporeal  and  incorporeal  property  and  rights  of  action  except  for 

personal  wrongs  passes  to  assignee  in 571 

in  settling  claims  assignee  is  confined  to  those  existing  at  commence- 
ment of  proceeding ...       571,  572 

exemptions  under  the  bankrupt  law 572,  573 

preference  of  claims 572,  573 

only  claims  provable  discharged  by 574 

moral  obligation  of  a  debtor  discharged  in,  to  pay  debt  in  full,  good 

basis  for  a  promise 574,  575 

fraud  as  an  element  in  proceedings  of ...     575 

mutual  relation  of  State  and  Federal  courts  in  cases  of,  rules  govern- 
ing      575-577 

District  Court  has  exclusive  jurisdiction 575 

strangers  may  have  rights  which  can  be  enforced  in  ordinary 

tribunals 575,  576 

State  sheriff  must  obey  District  Court's  injunction 576 

assignee  will  be  protected  from  having  property  taken  away  by 

a  State  court 576 

bankruptcy  court  may  control  foreclosure  against  estate   .     .     .     576 

when  District  Court  may  enjoin  State  Court 576 

cases  where  proceedings  were  instituted  in  State  Court  before 

commencement  of  bankrupt  proceedings 576 

liens  created  by  prior  contract  not  disturbed  by 577 

insolvency  under  State  statutes 577,  578 

distinction  between  insolvency  and 577 

constitutional  restrictions  upon  a  State  from  discharging  an  insol- 
vent debtor 577,  578 

rights  of  foreign  assignees  in  bankruptcy  and  insolvency    .     .     .  578-581 
conflict  of  opinion  as  to  whether  the  assignment  under  the  bankrupt 

law  of  a  particular  State  will  pass  title  elsewhere 578-581 

the  English  theory .579,  580 

the  prevailing  theory  in  United  States 580,  581 

special  questions  as  to  foreign  corporations 581 

BASTARDY, 

adulterine,  what  is 260 

(See  Parent  and  Child.) 
BILL  OF  ATTAINDER, 

nature  of 53 

constitutional  provision  respecting 51,  53 

object  of  prohibition  of 53 


INDEX.  677 

[References  are  to  Pages.] 

BILL    OF   ATTAINDER  — con^muer/. 

Act  providing  for  specified  oatli  for  admission  to  bar  Supreme  Court  53 

bill  of  exemption  not  a  bill  of  pains  and  penalties  and 53 

prohibition  against  applies  whether  punishment  absolute  or  conditional  53 

BILL   OF   PAINS   AND   PENALTIES 53 

BILL   OF   RIGHTS, 

provisions  of 48 

copied  extensively  in  U.  S.  and  State  constitutions 48 

meaning  of  excessive  bail  and  fines,  etc.,  as  found  in 69 

BOOTY, 

as  a  method  of  acquiring  title  to  personal  property 469-471 

BURIAL, 

duty  of  next  of  kin  as  to 202,  454,  455 

of  executor  or  administrator 648 

BY-LAWS.  (See  Corporations;  Stock  Corporations.) 

CAPACITY, 

as  affected  by  status 304-312 

of  married  •women  to  contract,  etc.    (See  Husband  and  Wife.) 
of  infants  to  contract,  etc.    (See  Infants.) 
CAPTURE, 

as  a  method  of  gaining  title  to  personal  property 469-472 

CEMETERIES, 

devises  in  trust  in  New  York 372-875 

may  not  acquire  land  under  the  laws  eminent  domain 426 

CHARACTER, 

when  in  issue  in  actions  for  libel  or  slander 92 

of  servant,  master  not  required  to  certify 336 

CHARITABLE   CORPORATIONS, 

defined      351,  386,  387 

devises  to,  under  statute  of  wills 371 

under   New   York    statutes    (1)    express   authority  necessary; 
(2)  avoided  by  principle  of  equitable  conversion ;  (3)  foreign 

corporations 372,  373 

restrictions  under  New  York  statutes 374,  375 

domicile  of 382 

equity  jurisdiction  over 385,  389 

foundation  and  founder  of  defined 385 

lands,  power  of  to  take 369,  376 

at  common  law  by  grant 369 

mortmain  acts  as  applicable  to 370,  634 

under  statute  of  wills 371 

under  New  York  statutes 372,  373 

power  to  dispose  of .       375,  376 

statutory  restrictions 376 

when  held  for  specific  purpose 375,  376 

legacies  to 635 

membership  in,  succession  of 360,  362 

mortmain  acts  as  applicable  to        370,  634 

statutes  of  founder 385 


678  INDEX. 

[References  are  to  Pages.] 
CHARITABLE   CORPORATIONS  —  continued. 

succession  of,  membership  iu 360,  362 

trusts  to,  under  statute  of  wills  and  Kevv  York  statutes      .     .  371,  375 

for  specific  purposes 375,  376,  387,  389 

for  general  purposes 386,  387 

visitation  of  .     .     •      ■ 384,  389 

when  funds  held  for  general  purposes 386,  387 

when  held  for  special  purposes 387,  389 

visitor  of,  who  is 385,  389 

(See  Will;  Corporations.) 

CHARITABLE  USES   OR   TRUSTS, 

enforced  by  Chancery  in  England 371 

defined 386,  387 

excepted  from  the  rule  against  perpetuities       .     .     .      466,  467,  633-636 
"  superstitious  uses  "  .     .     . 634 

CHARITIES, 

devise  to,  in  New  York  where  testator  leaves  wife,  parent,  or  child  238,  374 

public,  liable  for  acts  of  servants,  when 343 

special  rules  as  to  charitable  legacies 633-636 

English  statute  of  "  mortmain  " 634 

cy  pres  doctrine  abandoned 635 

gift  to,  not  subject  to  the  doctrine  of  remoteness 633-636 

gifts,  for  superstitious  uses 634 

CHARTER.     (See  Corporations.) 

CHATTELS, 

defined 439 

joint  tenancy  in 458 

tenancy  iu  common  in 459 

future  interests  in 460-462 

finding  of  as  means  of  gaining  title 472-480 

title  by  marriage 195-197 

CHATTELS   REAL, 

defined 447 

CHOSES   IN   ACTION, 

title  of  husband  to  wife's 193-195,197 

CITIZENS, 

who  are,  of  U.  S.  or  a  State 72,  73 

under  Fourteenth  Amendment 126 

privileges  of  United  States',  not  abridged  by  a  State 72 

meaning  of  term  at  common  law 119 

wrongful  acts  of  committed  abroad     . 122-124 

natural  born,  who  are 125    126 

privileges  and  immunities  of,  under  U.  S.  Constitution 128 

refers  to  fundamental  rights 128 

no  discrimination  against  non-resident  (see  License)     129,  436,  437 
privileges  and  immunities  under  Fourteenth  Amendment   ....     130 

amendment  directed  against  States 130 

amendment  embraces  all  citizens I.3I 

does  not  include  corporations 131    353 

private  corporations  not  included  under  Fourteenth  Amendment  131,  353 

when  Indians  are 312 

members  of  corporation,  deemed  to  be  of  what  State      .     .     .       353,  377 


INDEX.  679 

[References  are  to  Pages.] 

CITIZENSHIP, 

depends  on  allegiance 119,  121 

(See  Allegiance.) 

on  union  of  two  countries 120,  121 

on  separation  of  a  part  from  mother  country 121 

acquisition  of  citizenship  (1)  by  birth;  (2)  by  naturalization.     (See 

Naturalization.) 
of  child  born  abroad  of  citizen  parents    ........       125,  126 

presumption  of  does  not  arise  from  residence 128 

CITY, 

not  liable  for  acts  of  its  officials 366,  367 

liability  of  when  under  duty 367 

devised  in  trust  to  in  New  York 372 

CIVIL  DAMAGE  ACTS, 

theory  and  constitutionality  of  legislation 226-229 

seller  and  owner  both  liable 227 

what  is  "injury  to  means  of  support" 227 

where  intoxication  result  of  sales  by  several *.     .     228 

when  child  may  sue,  notwithstanding  recovery  by  the  wife      .     .     .     228 

seller  liable  whether  he  sell  with  or  without  a  license 228 

general  rules  as  to 226-229 

extends  to  husband  or  wife,  parent  or  child 226,  2.54,  255 

CIVIL  DEATH, 

at  the  common  law 78 

professed  monk 78 

conviction  for  felony ''^ 

under  law  of  New  Y'ork 78 

compared  to  outlawry 78 

as  affecting  right  of  husband  or  wife  to  marry 148 

effect  of,  on  marriage 161 

CIVIL  OR  ROMAN  LAW, 

origin  of .      12,  lb 

Digest  of,  by  Justinian 13,  14 

Pandects  or  Digests 13 

the  Institutes 13 

New  Code  and  Novels    ...  14 

relation  of,  to  common  law 12,  14,  15 

relation  of,  to  admiralty,  ecclesiastical  and  military  law  of  England        14 

rules  of,  as  to  succession 238,  G39,  640 

as  to  legitimacy  of  children 257 

as  to  adoption  of  children 266 

as  to  guardianship 268-270 

as  to  slavery 313 

as  to  eminent  domain 425 

what  not  the  subject  of  private  ownership  under 421-422 

disposition  of  property  by  will  under 442-444 

ownership  of  the  young  of  domestic  animals  under 481 

accession  as  a  means  of  acquiring  title  under 481,482 

term  "  succession  "  as  used  in 581 

form  of  wills  under •      586  n. 

methods  of  the  ecclesiastical  courts  borrowed  from 599 


680  INDEX. 

[References  are  to  Pages.] 

CIVIL    OR   ROMAN   LAW  —  continued. 

Justinian's  novel  as  to  who  shall  take  by  succession  from  a  de- 
cedent     639,640 

doctrine  of  "  collation  of  goods  " 6-iO 

CIVIL  RIGHTS, 

protection  of,  by  Fourteenth  Anoendment 73-77 

of  corporations  under  amendments 74,  75 

of  colored  persons  under  amendments 75,  130 

interference  with  trade  or  business  under  guise  of  police  power   .  437-438 
of  colored  persons  under  police  power 437 

COHABITATION, 

doctrine  of  triennial 147 

as  evidence  of  marriage 155 

COLLEGES, 

power  to  take  land  under  New  York  statutes 372 

visitation  of 386-388 

charter  of,  a  contract 399 

(See  Charitable  Corporations.) 

COLLUSION, 

as  a  defence  to  an  action  for  divorce 163,  170 

COLONIES, 

not  bound  by  act  of  Parliament  unless  specially  named      ....       49 

people  of,  only  taxed  when  represented        50 

COMITY, 

as  affecting  the  right  of  a  foreign  committee  of  a  lunatic  in  another 

State       310 

rights  of  foreign  corporations  as  depending  on 35S 

COMMERCIAL  AGENCIES, 

when  communications  privileged         88 

COMMITTEE, 

of  a  lunatic,  appointment  and  powers  of 308,  309 

(See  Lunatics.) 
COMMON  LAW 

depends  on  customs  as  announced  by  courts 6,  11 

differs  from  statute,  how 11,28 

contrasted  with  equity 11,  12 

foreign  statute  may  become  part  of,  by  adoption        ....     10-12,  21 

how  connected  with  Roman  or  civil  law 12-15 

(See  Civil  or  Roman  Law.) 
does  not  generally  include  ecclesiastical  law  of  Eufjland     ....       15 
announced  or  prescribed  by  courts  through  medium  of  reports        6,  17-28 

(See  Reports  ) 
English  law  adopted  as  of  particular  day  part  of  common  law  of 

State       10,  12,  21 

trial  by  jury  in  civil  suits  at ....     , 46 

no,  extending  over  entire  union      .     .  68,  71 

meaning  of  as  found  in  Eighth  Amendment 71 

may    be    adopted    by    Congress    for    Territories    or    District    of 

Columbia 71 

provisions  of  United  States  Constitution,  statutes,  and  laws  inter- 
preted in  light  of 7] 


I 


INDEX.  681 

[References  are  to  Pages.] 

COMPAXIES  ACTS, 

1862  to  1890  ,     .     .     , 401,  402 

COMPAXIES  WINDING  UP  ACTS 401 

COMPANY.     (See  Corporations.) 

COMPOSITION   DEEDS, 

what  are 565 

distinction  between  concession  by  a  single  creditor,  and  one  by  two 

or  more 565,  566 

creditors  may  impose  such  conditions  as  they  see  fit 566 

(See  Assignment  for  Creditors.) 
CONDONATION, 

as  a  defence  in  an  action  for  divorce 167  189 

(See  Divorce.) 

CONFIDENTIAL    COMMUNICATIONS, 

respecting  conduct  or  character  in  law  of  libel  and  slander      ...       88 

of  commercial  agencies 88 

made  during  marriage,  may  not  be  disclosed 230-232 

CONFISCATION, 

of  property,  during  civil  war,  claim  for 470,  471 

CONFRONTATION, 

of  witnesses  in  criminal  trials    .     .  61 

deposition  of  witness  not 61 

"  dying  declarations  "  not  excluded  by  rule  of  •     .......       61 

decree  of  in  divorce  cases 160 

CONFUSION, 

as  a  method  of  acquiring  title  to  personal  property 486-487 

CONGRESS, 

power  to  make  laws  contrasted  with  Parliament  and   State  legisla- 
ture   28,  41,  43 

power  to  legislate  over  Territories 56 

restrictions  on  legislation  by 51-72 

power  to  grant  copyrights 496 

power  to  grant  letters  patent 506,  534 

power  to  regulate  trade-marks 544,  553 

power  to  pass  bankrupt  laws 568,  569 

CONNIVANCE, 

as  a  defence  to  an  action  for  divorce 169 

(See  Divorce.) 

CONSANGUINITY  AND   AFFINITY, 

as  affecting  marriages 145,  147 

(See  Marriage.) 
CONSTITUTION, 

for  various  rights  guaranteed  by  see  respective  titles. 

CONSTITUTIONAL   RESTRICTIONS, 

1.     Upon  the  General  Government 51-72 

administration  of  justice,  as  affected  by        51-58 

habeas  corpus,  shall  not  be  suspended 58 

no  search  warrants  shall  issue  but  upon  probable  cause     .     .     .       58 
trial  of  all  crimes,  except  impeachment,  shall  be  by  jury  .     .      59,  60 


gg2  INDEX. 

[References  are  to  Pages.] 

CONSTITUTIONAL  RESTRICTIONS  —  con^mueJ. 

methods,  progress,  and  results  of  a  criminal  trial     ....      60-67 
indictment  by  grand  jury  necessary  to  hold  a  person  for  a 

capital  or  infamous  crime 60-61 

accused  to  be  confronted  with  witnesses 61 

to  have  compulsory  process  for  witnesses 61 

to  have  assistance  of  counsel 62 

cannot  be  compelled  to  be  a  witness  against  himself  ...       62 

cannot  be  put  twice  in  jeopardy 62 

general  regulations u<    <- 

no  person  shall  be  deprived  of  life,  etc.,  "  without  due  pro- 
cess of  law  "    67-68 

excessive   bail  or  fines,   or  cruel    punishments   not  per- 
mitted          69-71 

trials  in  Federal  Courts  in  civil  actions 71 

freedom  of  the  individual ;  regulations  preventing  unnecessary  inter-^ 

ference  by  Congress  with 51,55 

no  law  shall  be  made  establishing  religion  or  prohibiting  its  free 

exercise "^^ 

freedom  of  speech  or  the  press  not  to  be  abridged    .  56-57 

peaceable  assembly  or  right  to  petition  not  to  be  abridged     .     .       57 
soldiers  not  to  be  quartered  without  owner's  consent  ....       57 

right  to  keep  and  bear  arras  not  to  be  infringed 57 

legislation  usurping  judicial  methods       ....  ....      53-55 

no  bill  of  attainder 53 

no  ex  post  facto  law 53-55 

2.    Upo7i  the  States 71-77 

"  due  process  of  law,"  meaning  of 73 

indictment  by  grand  jury  imperative 73 

police  power  not  interfered  with 73 

person's  liberty  of  contract 73 

secures  judicial  hearing  to  litigants 74 

does  not  prevent  State  from  having  different  rules  for  different 

sections 74 

special  rules  resting  on  public  grounds  allowed 74 

domestic  corporations  within  meaning 74 

"equal  protection  of  the  laws,"  meaning  of 75 

civil  rights  protected  . 75 

CONSTRUCTION.    (See  Interpretation  and  Construction.) 
CONTEMPT   OF   COURT, 

enforcement  of  judgment  by  punishment  for 560 

(See  Judgment.) 
CONTINGENT    LEGACY, 

whether  vested  or 614-616 

absolute  and  conditional  legacies 616,  617 

CONTRACTOR, 

defined,  contrasted  with  servant .     323 

employer  not  liable  for  acts  of,  except  act  illegal,  or  under  control 

of  employer 337-339 

employer,  liable  when  under  duty  to  perform  act 338 

liable  for  acts  of  servants  and  sub-contractors    ........     337 

(See  Master  and  Servant.) 


INDEX.  683 

[References  are  to  Pages.] 

CONTRACTS, 

betweeu  citizens  of  different  countries  as  affected  by  war  .     .       138,  139 

of  married  women  (see  Husband  and  Wife). 

injury  to  child  in  carrying  out,  no  action  to  father     ......     247 

injury  to  servant  in  carrying  out,  no  action  to  master 344 

joint,  and  joint  and  several,  rights  and  obligations  under    ....     459 
as  to  when  au  executor  or  administrator  is  liable  on  implied,  for  the 

omission  of  a  duty 651 

action  against  au  executor  on  testator's    . 651 

of  personal  representative 658 

of  infant  void  or  voidable      .     .  28G,  295 

distinction  between  void  and  voidable 286 

ratification  of  infant's,  voidable 289-294 

disaffirmance  of  infant's 294-296 

of  lunatics  judicially  declared 307-309 

of  service,  remedies  of  servant  for  breach  of 326-328 

entirety  of,  defined 326,  328 

liability  of  master  for  acts  of  servant,  when  under 336 

rescission  and  breach  of,  distinguished ^     .     ,     326 

when  charter  of  corporation  is  a 352,  354,  355 

of  corporation ;  when  ultra  vires 356-359,  367,  368 

of  subscription  for  stock 392-395,  406-408 

remedies  against  directors  for  fraudulent  prospectus    .     .        392-394 

rescission  of  contract  for  fraud 394,  395 

of  author  and  publisher 501 

forfeiture  under 556 

(See  Forfeiture.) 
CONTRIBUTION, 

defined 459 

CONTRIBUTORY  NEGLIGENCE.    (See  Negligence.) 

CONVERSION, 

when  infant  liable  for 302 

COPARTNER, 

distinction  between  servant  and 324 

when  shareholder  liable  as  under  Companies  Act 395 

purchaser  from,  becomes  tenant  in  common 459 

COPYRIGHT, 

theory  and  nature  of 494,  495 

under  United  States  laws 495-505 

who  may  obtain 495 

the  subject  of 496-499 

mode  of  acquiring 499 

term  of  and  renewal  of        501 

assignment  of 501 

infringement  of 502-505 

dedication,  effect  of      .     , 489 

book,  what  is,  under  laws  of 496 

author,  who  is,  under  laws  of ,     .       498,  499 

abridgment,  what  is,  under  laws  of     .     . 497,  504 

remedies  for  infringement  of .       504,  505 

damage  for  infringement  of 505 


684  IND^^- 

[References  are  to  Pages.] 

COPYRIGRT -continued.  .  ,      ,  ,  ,07 

dramatic  composition,  what  is,  under  laws  of *y^ 

creditor's  remedies  against  owner  of 4^^ 

immoral  publications,  under  laws  of •     ^9^ 

benefits  may  accrue  to  children  of  author,  when ^ot),  t)Ui 

(See  LiTKRARY  Property.) 

alien,  right  to,  under  United  States  laws 488,  493,  495 

title  to  book,  whether  subject  of 498,  502 

CORPORATIONS, 

agents,  acts  of,  when  binding ^00,  oyj 

power  of  general,  to  issue  stock 409 

alienation  of  land  by am  I'd 

amalgamation,  and  consolidation  of 40d,  4U4: 

amotion " 

assignment  for  benefit  of  creditors  by ^84 

authority,  general  proceeding  to  correct  abuse  of 376,  387 

bankrupt,  proceedings  peculiar  to 573,  574 

borrowing  money,  power  to •     •       367,  384 

cancellation  of  stock,  may  maintain  action  to  cancel  spurious  certi 


ficates 


384 


capital  of,  considered  a  trust  fund 397,  398 

certificate  of  incorporation  of 355 

(See  subdivision,  charter  of,  below) 
charitable  or  eleemosynary  (see  Charitable  Corporations.) 
charter  of,  as  expressing  general  mode  of  creation     ....       355,  356 

implied  grant  of 355 

must  be  accepted;  user 356 

must  be  a  name  given     . 356 

when  a  contract 352,  398,  399 

when  subject  to  change  or  repeal 352,  398,  399 

surrender  of 400 

defective,  how  remedied  by  prescription 354 

effect  of  violation 400 

certificate  of  incorporation,  general  rules  as  to 355 

construction  of 383,  384 

must  be  strict 383 

incidental  or  implied  powers 384 

remedies  for  violation  by 389,  400 

what  acts  authorize  forfeiture  of 400 

classification 350-354 

aggregate  or  sole 351 

public  (municipal)  or  private 351,  352 

ecclesiastical  or  lay 351 

civil  or  eleemosynary  (charitable) 351 

domestic  or  foreign 352 

stock 351,  352 

quasi 352 

under  New  York  law 413,  414 

(See  generally.  Charitable  Corporations;  Foreign  Corpo- 
rations; Religious  Corporations;  Stock  Corporations.) 

contracts,  power  of,  to  make 367,  368 

express  or  implied  power 367,  388,  384 


INDEX.  685 

[References  are  to  Pages.] 

CORPORATIONS  —  continued. 

contracts,  to  borrow  money 360,  367,  383 

may  accept  bill  or  note,  based  upon  a  debt 384 

may  make  investments 384 

assignment  for  creditors 384 

to  sustain  another  corporation 384 

use  of  seal 367 

acts  of  agents  bind 368 

qualifications  in  charter,  on  power  to  make,  must  be  observed  .     368 

when  ultra  vires 356,  359 

when,  may  be  rescinded  for  directors'  fraud 394 

subscription  to  stock 406,  408 

(See  Foreign   Corporations;   Municipal  Corporations;    Stock 
Corporations.) 

conveyances  of  land  by 375 

when  held  on  specific  trust 375,  376 

by  religious,  etc.,  corporations 376 

creation  of 354,  356 

by  prescription 354 

by  Congress  or  State  legislature,  under  general  or  special  law  354,  356 

creditors  of,  remedies,  subrogation,  when  claims  unenforceable   .     360  n. 

in  actions  at  law • 378 

in  suits  in  equity 378,  401 

against  officers  for  diversion  of  capital 397 

on  dissolution 401,  405,  412 

franchise  cannot  be  sold  by 378 

assignment  by,  for  the  benefit  of 384 

bankrupt  proceedings  by 573,  574 

defined,  general  definition 350,  351 

character  of  the  power  to  act  as  an  artificial  person      ....     350 
distinction  between  a  stock  corporation  and  a  partnership  or 
joint  stock  company 351 

devises  to,  under  statutes  of  wills 371 

under  New  York  statutes 372,  375 

may  not  take  unless  expressly  authorized 373 

effect  of  conversion 373 

foreign  corporations 373 

limitations  on  amount  by  statutes  1848  and  1860 374 

gift  void,  if  capacity  exceeded o75 

directors,  and  trustees  of,  who  are 363 

election  of 363,  365 

amotion  of 362,  365 

remedies  for  wrongful  election 364 

what  acts  of,  bind 368 

notice  to,  when  notice  to  corporation 368 

remedy  of  one  director  against  others  for  exclusion  from  acting     396 

fiduciary  relation  of,  to  corporation 365,  391 

ratification  of  void  or  wrongful  acts  by  stockholders     .     .      359,  396 
remedies  of  corporation  against,  for  violation  of  duty  390,  391,  396,  398 

liability  of,  to  third  persons  in  general 392 

liability  of,  to  third  persons  for  fraudulent  prospectus      .      392,  399 
(See  Fraud  ;  Stock  Corporations.) 


686  INDEX. 

[References  are  to  Pages.] 

CORPORATIONS—  continued. 

disfranchisement 

dissolution  of,  by  death  or  removal  of  members 398 

by  act  of  legislature 398,  399 

by  surrender  of  corporate  rights 400 

by  judicial  decree,  at  common  law  and  equity     ....      400,  401 

under  statute  in  England  and  New  York 401,  403 

effect  of,  at  common  law 404 

effect  of,  in  equity 404,  405 

renewal  of  corporation  after 405 

dividends  on  stock  of,  payable  only  from  profits 377,  410 

belong  to  person  owning  at  time  declared 410,411 

what  are 409 

on  preferred  and  common  shares 411 

when  guaranteed 411 

domicile  of 381,  382 

election    and  removal   of   members  of,   having  definite  number        360, 

362 

majority  must  meet 360 

notice  of  regular  or  adjourned  meetings  presumed 361 

notice  of  special  meetings  must  be  given 361 

disfranchisement 361 

amotion 362 

election  and  removal  of  officers  of  stock 362,  365 

time  of  holding 364 

voting,  how  conducted 363 

voting  by  proxy 363 

voting  by  pledged  stock 363,  364,  409 

remedy  for  wrongful  election 364 

counting  of  votes 364 

amotion 362,  365 

adjourned  and  special  meetings  for  holding 361 

equity,  jurisdiction  over 378,  385,  387 

to  enforce  trusts 385,  389 

remedies  against  directors 396 

to  enforce  claims  of  creditors  401 

to  protect  creditors  and  stockholders  on  dissolution      .     .      404,  4()5 

executors  and  trustees,  right  to  vote  at  election 363 

foreign  (see  Foreign  Corporations). 

forfeiture  of  charter,  what  acts  amount  to 400 

remedies  for 389,  400 

forfeiture  of  stock 365,  405,  406 

franchise  of,  cannot  be  sold  by  creditor  under  judgment      ....     378 

fraud,  by  officers  in  obtaining  office 362 

by  directors  in  issuance  of  prospectus  or  report        .     .     .      392,  394 

no  action,  unless  regular  subscription 392 

or  v/hen  wrongful  intent  absent 393 

concealment  of  material  facts 393 

expression  of  opinion 394 

information  in  the  nature  of  quo  warranto,  to  remove  officers  .  .  .  362 
as  a  method  of  forfeiting  charter 389,  400 

judgment  against,  effect  of 351,  378 


INDEX.  687 

[References  are  to  Pages.] 
CORPORATTOXS  —  continued. 

lands,  cajiacity  to  acquire  and  dispose  of 369,  376 

may  acquire  in  absence  of  statute 369 

mortmain  statutes  of  England  and  the  United  States  .     .      370,  634 

effect  of  exceeding  amount  allowed        370 

effect  of  increase  in  value 370 

acquisition  of,  incidentally 37I 

acquisition  of,  by  foreign    .     .     „ 37O 

acquisition  of,  by  disseisin 37I 

acquisition  of,  by  will 37I 

acquisition  of,  under  laws  of  New  York 372,  375 

(See  subdivisions,  decises  to,  New  York,  wills;  and  title   Charitable 
Corporations.) 

power  to  dispose  of 375 

conveyance  of,  by 375^  376 

disposition  of,  on  dissolution 405 

legacy  to,  capacity  to  take 369,  632,  633 

legislative  power  over 352,  354,  355,  398,  400 

malicious  prosecution  by,  liability  for 368,  369 

mandamus,  as  a  remedy  to  place  persons  elected  in  office      ....     364 

as  a  remedy  to  compel  action  by 389 

mortmain  acts  in  England  and  United  States 370,  634 

name  of,  no  inherent  power  to  change 356 

may  be  estopped  to  deny  false 356 

negligence  of,  in  carrying  out  contract  ultra  vires 358 

New  York  law,  as  to  devises 372,  375 

alienation  of  land  by 376 

remedies  for  abuse  of  powers 390 

remedies  against  directors 396,  413 

dissolution 402    403 

outline  of  acts  under  which  corporations  may  be  created  .      413,  414 
pledged  stock,  when  owner  may  vote  at  election    .     .     .       364,  408,  409 

powers  of 356,  384 

acts  of  transgression  of,  or  ultra  vires 356,  359 

{  See  subdivision,  ultra  vires,  below.  ) 
succession,  where  membership  is  a  definite  number       .     ,      360,  362 
(See  election  of  members,  above.) 

succession  in  stock  corporations 362 

(See  subdivision,  election  of  officers,  below.) 

to  act  as  trustee 383 

quasi  corporation 383 

(See  also  subdivisions,   by-laros  or  ordinances,  contracts,  devises  to,  lands, 

legacy  to,  etc.) 

profits  of,  before  and  after  dividend  declared 410 

dividend  payable  out  of 397,  410 

prospectus  or  reports  inviting  investments  in    .     .     .     .     .     .      392,  394 

proxy,  vote  by 363 

public  (see  Muxicipal  Corporations). 

quasi,  powers  of 352 

towns  and  counties  are 352 

quo  warranto  as  a  means  of  forfeiture  of  charter 389,  400 

as  a  remedy  of  the  removal  of  officers  of 362,  364 

remedies  against,  for  abuse  of  power 389,  400 


688  ^^^^^- 

[References  are  to  Pages.] 

CORPORATIONS  —  con/inue^. 

remedies  against,  for  abuse  of  power,   quo  warranto,   scire  facias, 

mandamus,  etc ^°^ 

for  misconduct  of  oflBcers  or  directors 394,  395 

for  fraud  of  directors  in  soliciting  subscriptions       .     .     .      394,  395 
(As  between  corporation,  directors,  and  third  persons,  see  subdivision, 
directors  and  trustees,  above.) 

renewal  of,  after  dissolution 405 

scire  facias,  as  remedy  for  abuse  of  powers,  or  in  case  of  defective 

creation ' 389,  400 

seal  of,  use  of 367 

sovereign,  as  having  capacity  to  sue  and  be  sued 377,  380 

status  of,  whether  domestic  or  foreign 352,  354,  381,  383 

foreign,  may  be  excluded  by  State 353,  382 

may  be  taxed  or  licensed 353 

compelled  to  appoint  an  agent 382 

cannot  be  compelled  to  surrender  constitutional  rights   353,  382,  383 

are  persons  within  Fourteenth  Amendment 74,  75 

private,  are  not  citizens  within  Fourteenth  Amendment  .       131,  353 
members  presumed  to  be  citizens  in  order  to  confer  jurisdiction 

in  the  United  States  courts 353,  377 

(See  FoREiGX  Corporations.) 
subrogation  of  creditor  of,  claiming  under  ultra  vires  loan,  to  position 

of  creditor  paid 360  n. 

subscriptions  to  stock  in 392,  393,  406,  408 

(See  Stock  Corporations.) 

suits  by  and  against 376,  381 

suits  by 

by  foreign  corporations 377 

in  Federal  Courts 377 

by  foreign  states  or  sovereigns 377 

by  States  of  the  United  States 377 

(See  Foreign  Corporations;  State;  Sovereign.) 
suits  against 

foreign  corporations 378,  379 

foreign  state  or  sovereign       ...  379 

State,  in  own  court 380 

State,  in  United  States  Courts 380 

surrender  of  charter  by 400 

tort,  capacity  of  to  commit 368,  369 

assault,  nuisance,  trespass,  libel,  fraud,  false  imprisonment,  and 

conversion 368 

malice  and  for  malicious  prosecution 368,  369 

towns  and  counties  are  quasi 352 

(See  Municipal  Corporations.) 
trustees  of  (see  subdivision,  directors  and  trustees). 

trusts  to 371,  375 

ultra  vires,  acts  of 356,  359 

meaning  of  expression    ...  356 

may  be  a  violation  of  director's  duties  to  stockholder  or  an  act 

beyond  capacity 356,  359 

a  breach  of  duty  to  stockholders  may  be  waived  by  them  357,  359,  396 


ixDEx.  689 

[References  are  to  Pages.] 

CORPORATIOXS  —  continued. 

remedies  of  opposite  party  to  a  contract  which  is     .     .     .      357,  358 

how  far  it  renders  contract  void 358    359 

distinction  between  executory  and  executed  contracts  ....     359 

cannot  be  raised  by  a  stranger 359 

visitation  of  charitable 354.    339 

(See  Charitable  Corporatioxs.) 
wills,  of  real  estate  to  (see  subdivision,  devises). 

of  personal  property  to        369,  682,  633 

winding  up  of,  under  English  Companies  Acts 401,  402 

CORPOREAL  IMPOTENCE, 

as  involving  the  validity  of  marriage I47 

(See  Marriage.) 
CO-SERVANTS, 

^^o  are 330-334 

(See  Master  and  Servant.) 
COUNSEL, 

right  of  accused  to  assistance  of,  under  United  States  Constitution  .       62 

under  constitution  of  New  York .       62 

COUNSEL  FEES.  (See  Divorce.) 
COURTS, 

State,  when  decisions  binding  elsewhere 21   24 

in  sister  States 21 

in  England 21 

in  Federal  Courts 21-25 

binding  except  where  United  States  Constitution,  treaties, 

or  statutes  otherwise  provide 22 

as  to  construction  of  State  statute  and  Constitution  .     22,  23,  24 

as  to  rights  of  person  and  property,  when 22   24 

not  binding  when  statute  not  construed  by  State  Court  .     .       23 

dictum  as  to  State  statute  not  binding 23 

decision  as  to  State  statute  must  not  infringe  United  States 

Constitution 23 

not  binding  on  points  of  equity  jurisprudence       ....       24 
nor  in  cases  involving  commercial  law  and  general  juris- 
prudence      24  25 

nor  where  commercial  question  grows  out  of  application  of 

State  statute 24   25 

of  England,  decision  of,  not  binding  unless  part  of  common  law  of 

State 21 

Federal,  decisions  of,  binding  on  State  as  to  construction  of  United 

States  Constitution  and  laws  made  under  it,  in  other  cases  not       .       21 
Federal,  remedies  in,  in  equity  cases  based  on  general  rules  of  Eng- 
lish law 23  24 

Federal,  practice  in  common-law  causes  follows  State  practice     .      23,  24 
Federal,  jurisdiction  unlimited  in  suits  between  citizens  of  different 

States 71 

of  England,  appeals  in 19 

common  law,  trial  of  actions  in  by  jury 46 

United  States  Supreme,  must  review  actions  triable  by  jury  accord- 
ing to  rules  of  common  law 54 

44 


690  i^^^^- 

[References  are  to  Pages.] 

COURTS  —  continued. 

Federal,  trials  in,  as  affected  by  Amendments  to  Constitution     .      59-71 

Federal,  power  to  issue  habeas  corpus 99-103 

ecclesiastical,  displaced  in  England  by  a  court  of  probate   ....     599 

CREDITORS, 

riobts  of,  in  case  of  voluntary  settlement  by  husband  upon  wife  .  216 
of^'corpor'ation,  capital  trust  fund  for,  rights  of,  on  dissolution      397,  401- 

405,  409,  412,  413 
rights  of,  in  equity  to  follow  trust  funds  and  proceeds   .     .     .       456,  457 

right  of,  as  to  copyrights 495 

rules  applied  when  debts  are  satisfied  by  legacies  to       ...       624,  625 

composition  deed  with 565,  566 

(See  Composition  Deed.) 
assignment  for  the  benefit  of  (see  Assignment  for  Creditors). 

CRIME, 

trial,  to  be  by  jury,  and  in  State  where  committed 59 

trial,  to  be  speedy  and  public 60 

infamous  and  non-infamous,  defined        60 

regulations  as  to  trial  for,  under  United  States  Constitution  .  .  60-67 
necessity  of  indictment  by  grand  jury,  in  capital,  etc.,  cases  .  .  60,  61 
rights  of  accused  to  be  confronted  with  witnesses  against  him      .     .       61 

to  compulsory  process  to  obtain  witnesses 61 

to  assistance  of  counsel 62 

cannot  be  compelled  to  testify  against  himself 63 

(See  Corporation;  Witnesses;  Counsel.) 

accused  cannot  be  put  twice  in  jeopardy 62-67 

(See  Jeopardy.) 

when  committed  on  high  seas 122 

when  committed  by  one  owing  local  allegiance 122-124 

when  result  of  cause  set  in  motion  in  another  State 122 

when  done  under  command  of  foreign  State 123,  124 

when  committed  by  citizen  abroad 124 

when  husband  liable  for  wife's 206 

liability  of  infant  for  his 303 

legislation  against,  for  the  protection  of  trade-marks 554 

forfeiture  for 555^  556 

no  forfeiture  until  conviction 555 

doctrine  of  relation  as  applied  to  forfeiture 555,  556 

chattel  considered  as  itself  an  offender 555,  556 

forfeiture  because  of  attainder  for  treason 556 

CRIMINAL  CONVERSATION, 

defined 252 

evidence  of  v'ife  in  action  for 231   232 

CRITICISM, 

when  privileged      . 89 

CRUELTY, 

as  a  defence  to  divorce  on  the  ground  of  adultery       ....       167,  168 

as  a  defence  in  an  action  for  separation 185, 187,  189 

CUMULATIVE  LEGACIES, 

what  are g|o 

rules  for  determining 612   613 


INDEX.  691 

[References  are  to  Pages.] 

CURTESY, 

defined 192 

in  England  and  New  York 197 

CUSTOM  DUTIES, 

forfeiture  for 55g 

doctrine  of  relation  back  to  wrongful  act  upon  seizure  for       ,      '  556,  557 

CY  PRES, 

doctrine  of 31,  608 

abandoned     634,  635 


DAMAGES, 

vindictive  and  compensatory 77 

for  injuries  causing  death 77,  251,  252 

(See  Lord  Campbell's  Act.) 

special,  in  actions  for  slander 86 

(See  Slaxder.) 

in  action  for  seduction 249,  344 

in  actions  for  injuries  to  child 250 

prospective,  when  allowed 250 

expenses  when  included  in,  in  actions  for  injury  to  child  ....     250 

for  mental  suft'ering  not  recoverable 253 

when  servant  liable  to  master  over  for 327 

action  for,  by  servant  on  wrongful  discharge 328 

under  law  of  eminent  domain 427-430 

for  infringement  of  copyright 505 

for  infringement  of  patent 540 

DEAD   BODY, 

property  in 453-456 

bequest  of,  by  will 454,  455 

duty  of  next  of  kin  as  to  burial  of 454,  455 

duty  of  executor  or  administrator  as  to  burial  of 648 

DEATH, 

civil,  at  common  law  and  under  the  law  of  New  York 78 

•civil,  as  affecting  marriage 148,  161 

action  for  injuries  causing  (see  Lord  Campbell's  Act). 

injuries  resnlting  in,  in  admiralty 252 

DECEIT, 

action  against  directors  or  corporation  for  fraudulent  prospectus  or 

report 392,  393 

DECISION, 

considered  as  a  precedent 16,  17 

rules  for  determining  value  of 17 

rank  of  tribunal 17 

thoroughness  of  argument 17 

ability  of  the  court 18 

grade  of  court,  whether  superior  or  inferior 18 

intrinsic  merits  of  report  itself 18 

distinction  between  what  decided  and  dicta 16,  19 

distinction   between    what   is   binding   and  what  is  argument 
merely 19 


692  ^^^^^- 

[References  are  to  Pages  ] 

DECISION  —  continued. 

of  appellate,  binding  on  inferior  court 19 

binding  on  the  very  court  that  rendered  it 20 

of  courts  of  sister  States  and  of  England  merely  argument      ...       21 

Federal,  when  binding  on  State  court 21 

(See  Courts;  Practice.) 

must  be  determination  of  controversy  by  court 4,  15,  16 

to  be  ascertained  from  report 15-27 

(See  Reports.) 
followed  as  precedent  in  later  cases  («)  in  England;    (6)   in   the 

United  States ■ -^ 

of  State  court,  when  binding  on  Federal  courts 22-25 

(See  Courts.) 
when  reversed,  overruled,  questioned,  limited,  or  distinguished  .      17,  27 

when  affirmed,  approved,  or  followed 27 

nisi  prius,  value  of 1 ' 

DECREE, 

distinction  between  "  judgment  "  and 560 

(See  Judgment.) 
DEDICATION, 

of  literary  works 489 

(See  Literary  Property.) 

DEFAMATION.     (See  Libel,  Slander.) 

DEMONSTRATIVE  LEGACIES, 

what  are 610,  611 

DE^'IAL, 

as  a  defence  in  an  action  for  libel  or  slander 91 

as  a  defence  in  an  action  for  divorce        167 

DERELICTS, 

in  admiralty  law  defined 478-480 

DESERTION, 

by  husband,  effect  of,  on  liability  to  support  wife 202 

by  wife,  effect  of,  on  liability  of  husband  for  her  support    ....     203 
by  husband,  effect  of,  on  wife's  power  to  contract 210 

DEVASTAVIT, 

executor's  liability  for 662-664 

DIRECTORS.    (See  Corporations;  Stock  Corporations.) 

DIRECTORS'  LIABILITY  ACT  OF  1890 394 

DISFRANCHISEMENT, 

of  members  of  corporations 860-362,  365 

(See  Corporations.) 

DISSOLUTION, 

of  marriage  (see  Divorce). 

of  corporations  (see  Corporations). 

DISTRIBUTION  OF  INTESTATE'S  ESTATE, 

at  common  law 638 

under  Statute  of  Distributions   . 443-446,  639 

Roman  law  as  to 639,  640 

advancements,  doctrine  of,  in  relation  to 640-643 

(See  Advancements.) 


INDEX.  693 

[References  are  to  Pages  ] 

DISTRIBUTION   OF   INTESTATE'S   ESTATE —continued. 

domicile  as  affecting 642 

escheat  where  owner  dies  without  successor 557 

(See  Executor  and  Administrator  ;  Succession.) 

DIVIDENDS.     (See  Corporations;  Stock  Corporations.) 

DIVORCE, 

admissions  as  evidence  in  action  for 164 

agreement  of  separation  not  a  bar  to 172 

alimony,  where  marriage  is  annulled 159,  160 

upon  dissolution  of  marriage 163-167 

pendente  lite,  when  allowed 163-166 

rules  as  to  amount 164-166 

rules  as  to  permanent 171-173 

allegations,  specific,  iu  action  for 163,  164 

annulment    of    marriage,   who    may   maintain   action   iu   case    of 

lunacy 144 

cause  existing  at  time  of  marriage 159 

alimony  and  counsel  fees  in 159,  160 

effect  of 159,  160 

causes  for  annulment  existing  at  time  of  marriage 159 

children,  legitimacy  of 173 

custody  of 174-176 

support  of,  after 239 

collusion,  to  obtain 163,  170 

condonation  as  a  defence  to 167-169 

connivance  as  a  defence  to 169 

counsel  fees  in  an  action  for  annulment 159 

in  an  action  for  divorce 166 

cruelty  as  a  ground  for  separation 185-187 

(See  Separation.) 

death  of  party,  in  an  action  for 162 

defined 159 

defences,  in  action  for 167-171 

denial 167 

recrimination 167 

condonation 167-169 

procurement 169 

connivance 169 

collusion 170 

delay 170 

delay,  as  a  defence 170 

denial,  as  a  defence 167 

desertion,  as  a  ground  for  separation 187,  188 

(See  Separation.) 

dissolution  of  marriage  by  judicial  decree 160,  161 

dower  of  wife,  as  affected  by 176-178 

effect  of 171-179 

alimony,  rules  as  to 171-173 

legitimacy  of  children 173 

custody  of  children 174-176 

property  rights 176-178 

prohibition  of  future  marriage    . 178,  179 


1 


594  INDEX. 

[References  are  to  Pages.] 

DIVORCE  —continued. 

evidence  in  action  for • 164 

expenses  and  counsel  fees  in  an  action  to  annul  marriage   .     .     .  159,  160 

in  an  action  for  divorce 166 

foreign 179-185 

marriage  made  out  of  jurisdiction 180,  181 

domicile  of  parties  as  affecting 181-184,  230 

absence  of  defendant  from  jurisdiction 182 

fraud  in  the  proceedings 184 

foreign  marriage,  jurisdiction  to  grant,  when 180,  181 

fraud  in  proceedings  for  foreign 184 

procurement  of  the  commission  of  the  offence 169 

connivance  in  the  offence 169 

collusion  to  obtain 170 

future  marriage,  prohibition  against,  after 178,  179 

insanity,  who  may  maintain  action  to  annul  a  marriage  in  case  of    .     144 

of  party  .  162 

jurisdiction  of  court  to  grant 161,  164 

in  New  York 161 

of  foreign  marriage 180,  181 

domicile  of  parties  as  affecting 181-184,  230 

absence  of  defendant  from 182 

marriage  settlement  as  affected  by 177 

New  York,  jurisdiction  of  parties  in 161 

parties  to  the  action 162,  163 

death  or  insanity  of  party 162 

jurisdiction  of  court 161,  164 

jurisdiction  in  New  York 161 

procedure,  in  action  for 163-167 

aXimoxiy  pendente  lite 163-167 

collusion 163,  170 

specific  allegations 163,  164 

evidence,  admissions 164 

in  an  action  for  separation 188-190 

procurement  as  a  defence 169 

property  rights  after 176-178 

recrimination  as  a  defence 167 

separation,  judicial 185-190 

cruelty 18.5-187 

desertion 187  188 

procedure,  alimony 188-190 

DOMESTIC  RELATIONS, 

defined 141 

(See  Husband  axd  Wife;  Parext  and  Child;  Guardian  and 
Ward;  Master  and  Servant.) 
DOMICILE, 

as  affecting  lawfulness  of  trade  in  time  of  war 139 

as  affecting  capacity  to  marry 146,  147,  157,  158 

as  affecting  divorce 180-184 

as  affecting  construction  of  marriage  settlements 223,  230 

of  husband  that  of  wife '  230 

as  affecting  capacity  of  married  women  to  deal  with  property      .     .     230 


INDEX.  695 

[References  are  to  Pages.] 

DOMICILE  —  continued. 

right  of  wife  to  acquire  uew,  after  separation 230 

of  origin 255 

of  legitimate  child 255 

■when  changed  on  death  of  father 255 

when  changed  on  death  of  both  parents 255 

when  changed  b}'  marriage 255 

of  parent  of  child,  as  determining  legitimacy 258,  259 

effect  of  change  of 259 

as  to  inheritance  of  real  estate 259 

of  illegitimate  child  that  of  the  mother 263 

of  ward,  power  of  guardian  to  change 279 

of  infant  as  affecting  right  to  contract 284 

of  infant  determines  capacity  to  make  will  of  personalty     ....  286 

of  infant  not  changed  by  own  act 297 

of  lunatic  judicially  declared  insane 310 

of  apprentice  not  changed  by  own  act 322 

of  a  corporation 381,  382 

as  affecting  the  distribution  of  intestate's  estate 642,  643 

law  of,  solemnities  of  a  will  depending  on,  distinction  between  real 

estate  and  personal  property 587 

(See  Will.) 

DONATIO  MORTIS   CAUSA 668 

DOWER, 

how  affected  by  divorce 176-178 

defined 232 

DRUNKARDS, 

habitual,  statutory  rules  as  to  the  care  of 310 

DUE  PROCESS  OF  LAW, 

meaning  of,  in  Fifth  Amendment 68,  69 

provisions  for  restraint  on  legislative  as  well  as  judicial  and  execu- 
tive action 68 

what  implies 68 

resource  to  common  law  for  meaning 68,  69 

con.sidered  with  expression  "  law  of  the  land  " 68 

as  used  in  Fourteenth  Amendment 73-77 

grand  jury  not  imperative  in  criminal  cases 73 

State  police  power  not  interfered  with 73 

liberty  of  contract  preserved 73 

(See  Police  Power.) 

opportunity  for  all  litigants  to  be  heard 74 

preference  may  be  given  to  one  cause  over  another  ......  74 

State   may  have   different  rules  for  different  parts  of  its  ter- 
ritory   74 

public  reasons  may  justify  special  rules 74 

nuisances  may  be  summarily  abated 74 

as  related  to  police  power 432 

what  is,  respecting  prohibitory  liquor  laws 440 

DURESS, 

kinds  of 79 

marriage  obtained  by 144,  160 


696  IND^^- 

[References  are  to  Pages.] 

DUTIES.    (See  Custom  Duties.) 

DUTY 

when  imposed  by  statute ^^ 

when  imposed  by  rule  of  law 


ECCLESIASTICAL  CORPORATIONS, 

do  not  exist  in  the  United  States 354,  SSo 

ECCLESIASTICAL   LAW, 

how  related  to  civil  law 1-,  14 

not  part  of  American  common  law 15)  161 

provisions  of  Magna  Charta  respecting  jury  trials  did  not  extend  to 

trials  under ^" 

when  considered  part  of  common  law 161 

restitution  of  conjugal  rights  under 225 

confers  no  power  to  appoint  guardians  except  ad  litem 275 

EDUCATION, 

compulsory  laws  for 237 

religious  and  moral,  of  child 245 

of  ward  by  guardian 279,  283 

EMANCIPATION, 

of  child  by  parent 247 

EMINENT   DOMAIN, 

exercise  of,  by  local  authority  must  follow  statute 36 

private  property  taken  for  public  use  when  unconstitutional    ...       42 
land  acquired  by  cori^oration,  under  no   reversionary  interest    in 

grantor 405 

principles  of,  stated 425,  426 

condemnation,  under  law  of,  defined 427 

property,  what  is  under  law  of 427-430 

taking,  what  is  under  law  of 428-430 

as  applied  to  occupation  of  streets  by  elevated  railways    .       428,  429 
distinction  between  public   use   and  public   necessity,  under  law 

of      .....       430,  431 

(See  Public  Necessity.) 

both  real  and  personal  property  may  be  taken  by 559 

personal  property,  as  well  as  real  estate,  protected  by  the  Consti- 
tution      559 

destruction  of  personal  property  without  compensation  in  cases  of 

inevitable  necessity ....    430,  431,  559 

requiring  county  to  issue  bonds  for  State  improvements  is  not  a  case 

of,  but  taxation 559 

nature  of 559 

EMPLOYER.     (See  Master  and  Servant.) 

EMPLOYERS'  LIABILITY   ACT,  1880 335 

EMPLOYMENT, 

same  common,  defined,  scope  of 331,  334 

in  law  of  master  and  servant 339-342 


INDEX.  697 

[References  are  to  Pages.] 

ENGLISH  LAW, 

Petition  of  Rights 47 

Habeas  Corpus  Act 47 

who  may  apply  for  writ  of  habeas  corpus  under 95 

Bill  of  Rights 48 

Act  of  Settlement 48 

Tenure  of  Judicial  Office  Act 49 

Act  of  11  &  12  Wm.  III.,  c.  6,  modifying  the  common  law  against 

inheritance  by  aliens 134 

statutes  against  incestuous  marriages 145,  146 

statute  as  to  second  marriage  where  fii'st  spouse  is  absent  and  un- 
heard of  for  seven  years 148 

married  women's  laws 207-215 

statutes  as  to  wills  by  married  women 224 

statute  as  to  the  maintenance  of  j)oor  relatives 233 

Infants'  Custody  Act 243 

Lord  Campbell's  Act,  allowing  recovery  for  injury  causing  death,  251-253 
statute  permitting  proceedings  to  establish  legitimacy    .     .     .       264,  265 

Statute  of  Jointure 298 

Factory  Acts 301 

statutes  as  to  apprenticeship 318 

Act  for  Winding  up  Corporations 402 

Act  of  31  Edw.  III.,  stat.  1,  c.  11,  providing  for  the  appointment  of 

administrators 445 

Statute  of  Distributions 446 

registration  of  trade-marks  under 552 

rights  of  foreign  assignees  in  bankruptcy  under 579 

origin  of  the  power  to  make  a  will  under      . 582 

as  to  the  making  of  wills 585-599 

ENTICEiAIENT, 

of  wife,  suit  for,  by  husband 225 

of  servant,  suit  for,  by  master 344 

of  master,  suit  for,  by  servant 345 

ENTIRETY, 

tenancy  by 192 

in  New  York 197 

EQUALITY  OF  PROTECTION.  (See  Civil  Rights  ;  Due  Process 
OF  Law.) 

EQUITABLE   CONVERSION, 

reconversion  of  proceeds  of  sale  of  infant's  land 278 

as  applied  to  alien  land-holding 132,  133 

of  land  by  direction  in  will  as  affecting  right  of  corporation  to  take 

as  devisee 373 

defined 420 

EQUITY, 

origin  in  lack  of  legal  remedies 12 

governed  by  special  rules  worked  out  through  precedents    ...      12,  13 
provisions  of  Magna  Charta  as  to  jury  trial  do  not  extend  to  .     .     .       46 

jurisdiction  as  to  custody  of  children        . 174 

power  over  estate  of  child  to  direct  maintenance  from     .....     235 
jurisdiction  over  persons  and  property  of  infants  ....     242-244,  245 


698  INDEX. 

[References  are  to  Pages.] 

EQUITY  — continued.  _ 

power  of,  to  appoint  guardian  of  minor  child ^74: 

procedure  in,  to  make  infant  ward  of  the  court 280,  281 

rules  for  protection  of  infants 297-300 

marriage  settlements 297 

equitable  jointure _ 298 

appointment  and  control  of  guardian  ad  litem 299 

jurisdiction  of,  over  idiots  and  lunatics 306 

jurisdiction  of,  over  corporations  to  enforce  trusts 385-389 

to  remedy  abuses  of  directors 396 

to  enforce  claims  of  creditors 378,  401 

to  protect  creditors  and  stockholders  on  dissolution     .    404,  405,  411 

trusts  in  personal  property  in 456,  457 

creditor's  right  to  follow  trust  fund  in 456,  457 

jurisdiction  of,  over  copyrights        505 

"  "     patents 536,  539 

ESCHEAT, 

in  the  case  of  real  property 557 

treasure-trove,  shipwrecks,  and  estrays  and 557 

where  owner  dies  intestate  without  successors 557,  558 

in  England  bo7ia  vacantia  vest  in  the  king 557 

public  administrator's  duty  to  take  charge  of  vacant  estates    .     .     .     558 

ESTOPPEL, 

as  growing  out  of  married  woman's  covenant  of  warranty  ....     210 

guardianship  by 272 

in  case  of  affirmation  by  infant  that  he  is  of  age 286,  287 

in  pais  infant  not  bound  by    . 286,  287,  297 

against  corporation  using  false  name 356 

as  applied  to  licensee  of  a  patent 529 

ESTRAYS, 

ownership  of 476 

title  of  finder  to 557 

EXECUTION, 

enforcement  of  judgment  by 560 

(See  Judgment.) 

EXECUTORS   AND  ADMINISTRATORS,      ' 

actions,  what  survive  to 650-651 

when  liable  on  an  implied  contract  for  omission  of  duty  .     .     .     651 

against,  on  testator's  contract 651 

right  of,  under  Lord  Campbell's  act 251,  252 

may  sue,  for  damages  to  deceased's  estate  caused  by  death    .     .     251 

right  to  sue  for  mutilation  of  deceased's  body 454 

administration  in  probate  court 666 

administration  suits 664-666 

administrators,  distinctions  applicable  to 645-647 

letters  of  administration 645-646 

cum  testamento  annexo 645 

de  bonis  non 645 

durante  absentia 646 

durante  minore  cetate 646 


INDEX.  699 

[References  are  to  Pages.] 

EXECUTORS  AND   ADMINISTRATORS  — cori^muerf. 

pendente  lite 646 

durante  animi  vitio 646 

selection  of,  by  statutes 646 

husband  as,  of  wife's  estate 194,  197 

when  husband  liable  as,  of  wife's  estate 199 

incapacity  of  infant  to  become 297 

advertisement,  for  claims  by 649 

ancillary  administration 667,  668 

assets,  what  are 648 

distinction  between  legal  and  equitable 648 

real  estate  as 651-654 

collection  of 648-654 

conversion  of,  and  investments 660 

collection  of  claims  due  the  State 649 

bonds,  executor  need  not  give 644 

burial  of  deceased,  duty  of 648 

business  of  decedent,  continuation  by 658-660 

care  and  preservation  of  the  estate 660-664 

duty  to  insure 660 

conversion  of  assets  and  investments 660 

liability  for  waste  of  assets,  or  devastavit 662-664 

when  liable  for  co-executors'  waste 662,  663 

co-executors'  waste,  liability  for 662,  663 

collection  of  claims  due  the  estate  by 649 

contracts  of 658 

debts  of  decedent,  priority  of,  due  the  United  States  or  particular 

state 649 

order  in  which  property  should  be  used  in  the  payment  of     .  652-653 
distinction   between  charge   and  direction   as  to  the  mode  of 

paying 652 

testator  may  exempt  personal  property 652 

residuary  devise  treated  as  specific 652,  653 

what  court  has  power  to  take  land  for 653,  654 

devastavit  or  waste  of  assets,  liability  for 662-664 

distribution  of  estate 657,  658 

when  no  will • 657 

to  an  infant  distributee 657 

where  distributee  is  unknown  or  dies 658 

duty  on  legacies  and  succession 657 

executors,  distinctions  peculiar  to  . 644,  645 

need  not  give  bonds 644 

title  dates  from  testator's  death 644 

may  bequeath  executorship  in  absence  of  statute 644 

de  son  tort 644 

when  under  some  disability 645 

when  infant  is  appointed 645 

married  women  acting  as 645 

right  to  undisposed  residue  of  testator's  property 638 

general  duties  of 648-664 

(See  Appropriate  subdivisions  under  this  Title.) 

husband  as  administrator  of  wife's  estate 194,197,109 

infant,  incapacity  of  to  be 297 


700  iND^^- 

[References  are  to  Pages.] 

EXECUTORS  AND  ADMINISTRATORS  -  conimuerf. 

where  appointed  executor '     "     '     '     *  fiPi7 

payment  to  an  infant  distributee oD/ 

insurance,  as  to  duty  of  to  make '     "  fi«n 

investments  by,  and  conversion  of  assets      .......     .  ^^^^ 

judicial  proceedings 

administration  suits ««« 

administration  in  the  probate  court fi-4  fi^7 

legacies,  payment  of ,    \    \^  '     '     '     '     '    ^  ~(>ka 

not  payable  until  one  year  after  testator  s  death b54: 

in  what  currency J^ 

specific  bequest  should  be  delivered o54 

security  to  refund •     ^^^ 

intereston '     '     '     " ^^^i"J 

duty  on  legacies  and  succession o57 

letters,  testamentary *     *     '  a  A   Sft 

of  administration ^45,  bib 

liability  of,  limited  to  amount  of  assets  received 60I 

for  waste  of  assets  or  devastavit 662-664 

for  co-executors'  waste 662,  663 

management  of  the  estate 658,  660 

contract's  of  personal  representative 658 

continuing  business  of  decedent 658-660 

married  women  acting  as 645 

public  administrators'  duty  to  take  charge  of  vacant  estates    ...     558 

real  estate,  as  assets 651-654 

what  court  has  power  to  take,  for  testator's  debts    ....  653,  654 
recovery  of  property  in  a  foreign  country  or  another  State  ....     644 

refunding  of  legacies,  security  for        655 

residuary  devise  treated  as  specific  in  payment  of  debts       .     .     .  652,  653 

residue,  executors'  right  to 638 

stock,  may  vote  on  at  stockholders,  meeting 363 

unknown  distributee,  distribution  of  estate  where 658 

EXPATRIATION, 

right  of,  theories  as  to 139 

EX  POST  FACTO   LAW, 

nature  of 53,  54 

different  meaning  at  common  law  and  under  Constitution  .     .     .     •  53 

differs  from  retrospective  law 54 

instances  of,  making  an  act,  innocent  when  done,  criminal      ...  54 

aggravating  or  making  crime  greater  than  when  committed       .  54 

changing  punishment  after  offence  committed  54 

altering  rules  of  evidence 54 

changes  in  law  or  procedure  altering  situation  of   accused  to  his 

disadvantage  are 54 

change  in  kind  of  punishment  is    . 54 

law  requiring  history  of  criminal  to  be  considered  in  passing  sentence 

not  an 55 

may  be  void  as  to  past,  and  valid  as  to  future  offences 55 

applies  to  criminal  matters  only 55 

prohibition  applies  to  Congress,  legislatures,  and  constitutions    .     .  55 

statute  making  time  of  execution  of  death  sentence  uncertain  an      .  55 


INDEX.  701 

[References  are  to  Pages.] 

EX  TERRITORIALITY, 

doctrine  of,  as  exempting  from  local  allegiance 123 

EXTRADITION, 

as  depending  on  international  law  or  treaty 103,  110 

interstate,  under  United  States  Constitution  and  statutes  .     .     .  104-109 

crime  for  which  demand  made .     105 

indictment    or    affidavit,    validity    of    determined    by    habeas 

corpus 105,  106 

who  is  a  fugitive  from  justice,  how  determined 106 

duty  of  asylum  State 107 

the  warrant,  its  review  by  haleas  corpus 108,  109 

foreign,  depending  on  treaty ...     110 

fugitive  tried  for  offence  for  which  extradited,  and  no  other  .  109-112 

treaty  resorted  to  for  rule  of  decision Ill,  112 

crime  one  at  common  law  or  statutory 112,  113 

proceedings  in  aid  of,  under  United  States  legislation  .     .     .  113, 114 
complaint,  warrant,  examination  before  commissioner,  warrant 
of  commitment,  surrender 114, 115 

requisition  of  demanding  State  or  country    ......  104,  114,  115 

(See  Habeas  Corpus). 


FACTORY   ACTS, 

for  protection  of  children  in  employment 237,  300,  301 

for  protection  of  servants 335 

FAILING   DEBTOR.     (See  Assignment  for  Creditors;  Bank- 
ruptcy AND  Insolvency;  Composition  Deeds.) 

FALSE   IMPRISONMENT, 

action  for  .     . ....      94,  95 

FINDING, 

method  of  gaining  title 472-480 

on  land    . 472-478 

at  sea 478-480 

treasure  trove,  under  law  of 475 

estrays  under  law  of 476 

wreck  under  law  of 477 

derelict 479 

when  larceny 473 

FINE, 

as  a  method  of  conveying  wife's  land ,     .     .     .     .     207 

and  recovery,  as  a  method  of  conveying  infant's  land     .....     290 

FOREIGN  CORPORATIONS, 

not  persons  within  fourteenth  amendment 74,  75 

defined 352 

power  to  act  outside  of  State  where  created 353 

recognition  elsewhere  depends  on  comity 353,  382 

conditions  imposed 353 

taxes  and  licenses 353 

prohibition  against  removal  of  suits  .......  353,  382,  383 

appointment  of  agent 382 

not  citizens  entitled  to  privileges  and  immunities 353 


7Q2  INDEX. 

[References  are  to  Pages.] 
FOREIGN   CORPORATIONS  —  con^mwef/. 

citizens  for  purpose  of  conferring  jurisdiction  on  courts       .     .     .  353,  377 
acquisition  of  land  by,  in  another  State,  by  deed  or  devise     .  370,  373,  375 

suits  by,  in  Courts  of  other  States  and  Federal  Courts 377 

suits  against,  at  common  law 378 

under  statutes 378-381 

by  attachment 378 

by  service  on  agent 378 

by  service  on  public  officer  designated  by  law 379 

by  service  on  officer  temporarily  in  State 379 

contracts  of  void,  if  conditions  imposed  on  doing  business  not  com- 
plied with 382 

members  when  presumed  to  be  citizens  of  foreign  State       .     .     .  353,  377 
rights  of  a  foreign  assignee  in  bankruptcy  of 581 

FOREIGN  MARRIAGE  OR  DIVORCE.     (See  Marriage;  Divorce.) 

FOREIGN   SOVEREIGN  OR  MONARCH, 

suits  against,  in  courts  of  other  countries 3,  379 

suits  by,  in  courts  of  other  countries 377 

FORFEITURE, 

title  by 555-557 

applicable  both  to  real  and  personal  property 555 

for  a  crime 555,  556 

no  forfeiture  until  conviction 555 

doctrine  of  relation  applied  to 555,  556 

chattel  considered  as  itself  an  offender 555,  556 

extended  to  all  kinds  of  personal  property,  whether  in  possession  or 

in  action 556 

application  to  admiralty  law 556,  557 

under  a  contract 556 

because  of  attainder  for  treason 556 

for  violation  of  customs,  internal  revenue,  and  navigation  laws    .     .     556 

classification  of 556 

proceedings  to  cause,  an  action  in  rem 557 

as  applied  to  admiralty  law 557 

of  charter  by  corporation 389,  400 

of  stock  in  corporation 365,  406,  407 

(See  Corporations;  Stock  Corporations.) 

FOUNDER   AND   FOUNDATIONS, 

defined 385 

FRANCHISE, 

of  corporation  cannot  be  sold  under  a  judgment 378 

FRAUD, 

effect  of  marriage  obtained  by 144,  160 

(See  Marriage.) 

of  infant  in  making  contract 286 

liability  of  infant  for 286,  302 

committed  by  servant,  liability  of  master  for 340 

in  prospectus  or  report  of  directors  or  promoters 392-396 


INDEX.  703 

[References  are  to  Pages.] 
FRAUD  —  continued. 

in  sale  of  personal  property  does  uot  prevent  title  passing  ....     423 

as  an  element  in  bankruptcy  proceedings 575 

legacies  procured  by g32 

FREEDOM   OF   SPEECH    AND   OF   THE   PRESS, 

Congress  shall  make  no  law  abridging 56 

protection  does  not  extend  to  immoral  publications  ...      57,  117,  118 

■what  are  obscene  publications  under  clause 57 

law  prohibiting  mailing  of  obscene  letters  constitutional     .     .     .57,  118 
(See  Letter.) 

private  sealed  letter  within  the  act 57 

constitutional  provision  does  not  justify  libel  or  slander     ....       57 

FUGITIVE   FROM  JUSTICE, 

who  is,  within  the  meaning  of  the  Constitution 106 

FUTURE   ESTATE, 

in  personal  property 460-467 

remainders 461 

executory  devises 461 

powers 462 

suspension  of  ownership 464-467 


GENERAL  LEGACIES, 

what  are 611-613 

GIFT, 

causa  mortis 668 

GOOD-WILL, 

relation  of,  to  trade. marks 548 

GRAND  JURY, 

indictment  of,  in  case  of  capital  crimes 60 

meaning  of  term  as  used  in  Constitution 46,  60 

indictment  of  defined 60,  61 

indictment  of  not  corrected  at   trial,   where   constitutional  clause 
applies 61 

GUARDIAN   AND   WARD, 

ancillary  guardian,  when  appointed 276,  280 

appointment  and  removal  of  chancery  and  probate  guardians,  pro- 
cedure for 275,  276,  280,  281 

civil  law,  rules  of ,  as  to 268-270 

control  of  equity  over  guardian  ad  litem 299 

answer  submits  rights  of  infant  to  court 296 

right  of  "  parol  to  demur  " 299 

effect  of  failure  to  appoint 299 

duties  of  guardians 280-283 

to  make  proper  investments 282 

to  account 282 

not  to  act  adversely 283 

to  educate  ward 283 

foreign  guardian,  power  of 280 


704  INDEX. 

[References  are  to  Pages.] 

GUARDIAN   AND   ^VAKD —  coniiniied. 

kinds  of  guardians  in  English  and  American  law 270-277 

by  nature 270 

by  nurture 2<0 

in  socage      .......••  270-272 

by  estoppel 9.  r2 

testamentary  guardians 272-274 

chancery  guardians • 274-275 

probate  or  surrogate's  guardians 275-276 

ad  litem  and  special  guardians 276 

power  of  guardians 277-280 

over  ward's  personalty - 277 

over  ward's  realty 277-279 

(See  Infants.) 

to  change  ward's  domicile 279 

as  to  religious  education 246,  279,  283 

as  to  foreign  assets    ...  280 

as  to  person  of  ward        280 

of  a  foreign  guardian 280 

undue  influence  of  guardian  over  ward 283 

ward  of  court,  when  infant  becomes 280,  281 

GUARDIANSHIP  OF  INFANTS  ACT 246 


HABEAS  CORPUS, 

alien  enemy,  writ  cannot  be  granted  in  favor  of 96 

children,  to  determine  the  custody  of,  as  between  parents   .      97,  98,  174, 

240-242 

under  New  York  Revised  Statutes 242 

application  for  writ  of,  by  mother  of  illegitimate  child  to  obtain 

custody 263 

by  guardian  to  obtain  custody  of  ward 273 

to  State  court  for  discharge  of  minors  enlisted  in  United  States 

army 296 

civil  proceeding,  application  for,  is 103 

discharge  of  prisoner  brought  up  on  writ  of 97,  98 

where  detention  claimed  under  warrant,  etc 97 

where  detention  is  claimed  under  general  principle  of  law,  e.  g., 

by  parent  of  child,  etc 97,  98,  174 

(See  Parent  and  Child.) 

when  7'es  adjudicata 99 

English  Act,  who  may  apply  for  under 95 

extradition,  to  bring  up  one  held  under,  proceeding  for   .  105,  108, 114,  115 
(See  Extradition.) 

New  York  law,  who  may  apply  for  under 95 

not  applicable  when  detention  is  by  process  of  United  States 

courts 95 

nor  when  held  on  final  judgment  of  any  court 95 

under  New  l''ork  Revised  Statutes  to  determine  custody  of  child,     242 

petition,  contents  of 96 

punishment  for  disobedience  of  writ 96 

remand  of  prisoner  brought  up  on  writ  of •       97 


INDEX.  705 

[References  are  to  Pages.] 

HABEAS   CORFVS  — continued. 

return  to  writ  of      .     .     , 96   97 

review  is  not  a  writ  of 97 

State  courts,  issuance  of  writ  by,  when  prisoner  held  under  United 

States  authority 200,  101 

for  discharge  of  minors  enlisted  in  United  States  army     .     .     .     269 
suspension  of  writ  of,  constitutional  prohibition  against      ....       58 

provision  applies  to  privilege,  not  to  writ 58 

power  of  belongs  to  the  legislative  branch  of  government      .     .       58 

instances  of  during  the  civil  war 58 

traverse  to  return  to  writ  of 97 

United  States  laws,  application  for  writ  of  under,  when  prisoner  is 

held  in  \-iolation  of 76 

cannot  be  granted  under,  where  one  is  abducted  from  a  State 

and  held  in  another  under  a  criminal  charge 76 

when  issued  by  Federal  courts 99,  103 

provision  of  United  States  Revised  Statutes 99,  100 

appeal  to  Supreme  Court  from  conviction  of  lower  court  .       100,  102 

when  prisoner  held  under  State  authority 100,  103 

jurisdiction  of  Supreme  Court 99 

ward,  application  for  writ  of,  by  guardian  to  obtain  custody  of  .  .  273 
writ  itself,  contents  of 96,  97 

HABEAS   CORPUS   ACT, 

provisions  of 47,  95 

extended  provisions  of  Magna  Charta 47 

generally  adopted  in  the  United  States .      48,  95 

extended  by  later  statutes  in  England 48 

right  guaranteed  by,  may  be  suspended  by  English  Parliament  when      48 

HEIR, 

must  be  born  in  lawful  wedlock 259 

HIRING.     (See  Master  and  Servant;  Contract.) 

HOLOGRAPHIC   WILL, 

meaning  of,  under  the  Roman  law      . 586u 

HOMESTEAD   LAWS, 

benefit  of,  accrue  to  children 255 

HOTCH-POT, 

meaning  of 640 

HUSBAND   AND   WIFE, 

administrator  of  husband,  right  of,  in  wife's  estate  ...  -  194,  197 
admissions  by  wife  out  of  court,  how  far  binding  on  husband  .  .  231 
alienation  of  affection,  right  to  recover  for  .......       213,225 

annulment,  dissolution  and  judicial  separation 159-190 

(See  Divorce.) 
chattels  real  of  wife,  husband's  right  in,  at  common  law    ....     195 

effect  of  statutory  changes 197 

children,  custody  of.     (See  Divorce;  Parent  and  Child.) 

choses  in  action  of  wife,  husband's  rights  at  common  law  .     .     .  193-195 

effect  of  statutory  changes 197,  198 

civil  damage  acts,  rights  under 226-229 

(See  Civil  Damage  Act.) 
45 


706  INDEX. 

[References  are  to  Pages.] 

HUSBAND   AND   WIFE  —  continued. 

confidential  communications  between 231 

contracts  of  wife,  her  capacity  to  make 206-215 

at  common  law 206-211 

could  purchase,  but  could  not  hold  lands  without  husband's 

consent 207 

could  convey  land  by  fine 207-210 

could  contract  when  deserted  by  husband    .......       210,  211 

under  statutes 198,  211-215 

may  deposit  money  in  savings  banks 211 

.  may  insure  husband's  life 211-213 

may  patent  inventions 213 

has  a  right  to  her  earnings 213 

may  control  her  separate  estate  and  carry  on  business    .     ■     213 

her  general  power  to  contract 214,  218 

may  enter  into  partnership  with  husband     ....       214,215 

her  right  to  make  other  contracts  with  him 214 

may  sue  in  her  own  name  for  injuries  to  person  and  prop- 
erty         213,  226 

conveyance  by  wife  under  New  York  Revised  Statutes    208,  210 
conveyance  by  wife  under  English  Married  Women's  Prop- 
erty Act 209 

conveyance  by  wife  to  husband  or  vice  versa      .     .     .       209,  210 

conveyance  by  estoppel 210 

creation  of  the  relation,  capacity  to  marry,  marriage  contract  and 

legal  consequences 142-159 

(See  Marriage.) 

crimes  of  wife,  husband's  liability  for 206 

criminal  conversation,  in  action  for,  wife  cannot  testify  for  husband     231 

debts  of  wife,  duty  of  husband  to  pay,  an/e-nuptial 198-200 

liability  of  wife's  sole  and  separate  estate  for 199 

(See  Sole  and  Separate  Estate.) 

entirety,  estate  by,  at  common  law 192 

not  affected  by  statutory  change 197 

fee  of  wife,  husband's  right  in,  at  common  law 191,  192 

effect  of  statutory  change 197 

fine,  wife's  conveyance  by  at  common  law 207 

legal  consequences  of  the  relation 190-233 

libellous  letter  about  husband  addressed  to  wife 81 

life  estate  of  wife,  husband's  right  in  at  common  law 192 

effect  of  statutory  change 197 

New  York,  married  women's  acts  in 198,  211-215 

partnership  between     .     .  214 

personal  violence  by  husband,  wife's  protection  against       ....     229 
personalty  of  wife,  husband's  right  in,  when  tangible,  at  common  law     196 

effect  of  statutory  changes 197 

pin-money  trust 219 

property  of  wife,  husband's  right  in  at  common  law  and  under  statu- 
tory changes   190-198 

real  estate  of  wife,  husband's  right  in 191-198 

at  common  law 191-196 

when  in  fee 191,  192 

in  estate  by  entirety 192 


INDEX.  707 

[References  are  to  Pages.] 
HUSBAND    AND    WIFE  —  continued. 

in  life  estate jgo 

statutory  changes 196-198 

wife  could  purchase,  but  could  not  hold  lands,  without  husband's 

consent O07 

could  convey  by  fine  at  common  law 207-210 

conveyance  by  wife  under  New  York  Revised  Statutes     .     .  208-210 
conveyance  under  English  Married  Women's  Property  Act  .     .     209 

conveyance  by  wife  to  husband  or  vice  versa 209,  210 

conveyance  by  estoppel , 210 

separate  estate  of  wife 215-'''^3 

under  antenuptial  settlement o|q 

under  postnuptial  settlement 21(] 

creditors'  rights 216 

under  settlement,  with  view  to  separation 217 

when  created  by  other  methods  than  a  settlement 218 

pin-money  trust 219 

rights  of  wife  over 219-223 

suits  against  husband  for  protection  of 221 

disposal  of  by  wife 220-224 

services,  right  of  husband  to  recover  for  the  loss  of  wife's  .     .       225,  226 

settlement,  wife's  equity  in 194 

antenuptial 216 

postnuptial  . 216 

made  with  view  to  separation 217 

society,  right  of  either  to  that  of  the  other 225 

suits  for  restitution  of  conjugal  rights 225 

right  to  recover  for  alienation  of  affections 213,  225 

for  enticement,  loss  of  service  and  seduction       ....       225,  226 
suits,  by  wife  in  her  own  name  for  injuries  to  person  and  property     213, 

226 
against  husband  for  protection  of  wife's  separate  estate  .     .     .     221 

support  of  wife,  husband's  duty  to 200,  205 

when  they  cohabit 200,  202 

desertion  by  husband 202 

expulsion  of  wife  from  home 202,  203 

desertion  by  wife 203 

adultery  of  wife 203 

separation  by  agreement 204 

surname,  wife's  right  to  husband's 229 

torts  of  wife,  husband's  liability  for 205   206 

will,  power  of  wife  to  make,  of  lands 223,  224,  585 

of  personalty 224,  225,  585 

witnesses,  when  may  be,  for  and  against  each  other  ....       230,  231 

confidential  communications 231 

as  to  acts  of  violence  against  her 231 

as  to  secret  facts 231 

admissions  out  of  court 231 

in  actions  for  criminal  conversation,  etc 231 

statutory  changes 231 

neither  may  testify  as  to  non-access 261 


708  INDEX. 

[References  are  to  Pages.] 

ICE, 

when  private  property 422 

IDIOTS, 

jurisdiction  of  equity  respecting 305,  306 

(See  Lunatics.) 
IGXORANCE   OF   LAW, 

in  case  of  infancy 292 

ILLEGITIMATE   CHILDREN.      (See  Parent   and   Child;   Legi- 
timacy.) 
INDIANS, 

status  of  tribal 311 

tribal,  owe  no  allegiance  to  State 311,  312 

tribal,  when  "persons" 312 

when  citizens 312 

INDICTMENT.     (See  Grand  Jury;  Presentment.) 
INFANTS, 

antenuptial  debts  of  wife,  of  liability  for 199 

administrator,  cannot  act  as 297 

civil  acts  other  than  contracts 296,  297 

enlistment  in  army 296 

contracts  of  ancestor 296,  299 

relinquishment  of  dower  by  jointure 297 

contracts  of  apprenticeship 296,  315,  319 

payment  of  taxes 299 

support  of  illegitimate  child 262,  2G9 

contracts  of,  general  rule 286,  287 

whether  void  or  voidable 286,  295 

fraud  in  making 286,  302 

negligence  or  other  tort  in  course  of 286 

declaration  that  he  is  of  age 286,  287 

contracts  for  necessaries 287-289 

necessaries  defined 287,  288,  289 

contract  may  be  implied 289 

money  borrowed  in  payment  for 289 

contracts  of,  in  contemplation  of  marriage,  how  affected  by  statute 

validating  all  such  contracts 298 

crimes,  liability  for .303 

disaffirmance  of  a  contract  during  infancy  or  afterward       .     .     .  294-296 

general  rule 294 

recovery  of  money  paid 294 

rescinding  contract  of  service 295 

by  persons  other  than  infant,  but  in  privity  with  him       .     .     .     295 

conveyance  of  real  estate 290 

purchase  of  real  estate 291 

sales  and  purchase  of  personal  property 291 

distribution  of  decedent's  estate,  when  distributees  are 657 

domicile,  capacity  to  act  as  affected  by 285 

cannot  be  changed  by 297 

equity,  special  rules  in,  concerning 297-300 

marriage  settlement 297 

jointure  as  barring  dower  of  infant 298 

duty  of  guardians  ad  litem  in  suits  in 299 


INDEX.  709 

[References  are  to  Pages,] 

INFANTS  —  continued. 

obligation  incident  to  ownership  enforced 299   300 

rights  of  unborn  children  protected 300 

executor,  where  appointed  as g45 

factory  acts,  in  relation  to 300   301 

illegitimate  child,  liability  of,  to  support 262'  269 

incapacities  other  than  contractual ,     297 

cannot  qualify  as  administrator 297 

nor  for  office 297 

nor  change  domicile 297 

nor  make  will  of  real  estate 297 

estoppel  in  pais  not  applicable 297 

necessaries  of,  what  are,  and  contracts  for 287-289 

ratification  by,  of  voidable  contracts 289-294 

conveyances  of  real  estate 290 

purchases  and  leases  of  real  estate 291 

sales,  mortgages,  and  purchases  of  personal  property    ....     291 
ratification  of  indebtedness  contracted  during  infancy      .     .     .     292 

knowledge  of  law  as  an  element  in 292 

nature  of  promise 293 

sale  of  land  belonging  to,  under  statutes 277-279 

under  private  act 277   279 

status  of 284 

torts,  liability  of,  for 301    302 

in  carrying  out  contract 286,  302 

conversion,  replevin 302 

fraud 302 

unborn  children,  rights  of  protected  in  equity 300 

when  incapacity  to  act,  contract,  marry,  commit  a  crime,  etc.,  ceases     284 

will  of  real  estate,  cannot  be  made  by 297 

INFANTS'  CUSTODY  ACT 243 

INFANTS'  RELIEF  ACT,  1874 293 

INFORMATION.     (See  Quo  Warranto.) 
INFRINGEMENT, 

of  copyright 502-505 

of  patent  right 531-534,  540 

of  trade-marks 550-562 

no  violation  of  trade-mark  to  use  it  for  a  wholly  distinct  purpose     .     543 
INJUNCTION, 

in  restraint  of  a  threatened  libel 82 

rules  governing  the  right  to,  to  protect  a  trade-mark 551 

INJURIES, 

causing  death 77,  78,  226,  251 

causing  death  committed  on  high  seas 253 

INQUEST  OF  OFFICE, 

method  of  recovering  land  from  alien 132 

INSOLVENCY.     (See  Bankruptcy  and  Insolvency.) 
INSTITUTES.     (See  Civil  or  Roman  Law\) 

INSURANCE, 

by  wife  on  life  of  husband  in  New  York      . 211,212 

assignment  of  policy  by  wife 211,212 


rjlQ  INDEX. 

[References  are  to  Pages.] 

INSURANCE  —  continued. 

action  in  equity  by  creditors  to  obtain  lien  on  policy 211 

companies,  foreign,  may  be  excluded  from  doing  business  ....     353 

INTERPRETATION  AND  CONSTRUCTION, 

general  rules ;      30,  31 

reasonable  implications  as  well  as  express   words  taken  into 

account .■''■.■       ^^ 

words    taken     in    ordinary    sense     unless    having    technical 


meaning 


30 


intention  to  be  followed 30 

but  meaning  must  be  found  in  text 30 

whole  of  writing  must  be  considered 30 

difference  between  interpretation  and  construction 30 

construction  and  doctrine  of  c^  jjres 31,608 

difference  between  strict,  liberal,  and  extravagant  construction    .     .       31 

later  clause  repugnant  to  earlier  in  same  instrument 35 

for  interpretation   and  construction   of   statutes.      (See   Statute 
Law.) 

of  wills,  rules 603-608 

proceeding  for  the  construction  of  a  will 603,  604 

(See  Wills;  Cy  Pres.) 

INVENTION  AND  DISCOVERY.     (See  Patents.) 

INTERNAL  REVENUE  LAWS, 

forfeiture  under 556,  557 

collection  of 558,  559 

(See  Forfeiture;  Taxation.) 


JEOPARDY, 

defence  of  prior 62-67 

signification  of  as  used  in  Constitution 63 

when  accused  may  be  said  to  be  in 63 

rule  in  United  States  and  State  courts  as  to 64,  65 

of  jury  discharged  in  course  of  trial,  no 63,  64 

must  be  conviction  or  acquittal 63,  65 

must  be  on  trial  for  same  offence,  instances 63,  64 

rule  in  England 67 

two  theories  as  to 64,  65 

if  court  has  no  jurisdiction,  no 65 

where  law  under  which  tried  void,  no 65 

where  judgment  arrested  for  inherent  defects  in,  no     ....       65 

where  protection  waived,  no 65 

where  defective  indictment  prevents  judgment,  no 66 

where  acquittal  on  variance  between  indictment  and  evidence,  no       66 

where  acquittal  had  by  fraud,  no 66 

where  discharge  of  jury,  or  adjournment  for  sickness  of  judge 

or  juror,  absconding  of  juror,  no 66 

where  nolle  prosequi  entered,  no 66 

dismissal  of  charges  before  trial,  no 66 

trial  not  finished  at  end  of  term,  no 66 

if  prisoner  acquitted,  new  trial  not  granted  on  appeal  for  error        67 


I 


INDEX.  711 

[References  are  to  Pages.] 

JOINT  LIABILITY, 

defined , 459 

contributiou  in  case  of .  459 

distinguished  from  joint  and  several 459 

JOINT  OWNERSHIP, 

in  personal  property 458-460 

partition  of  property  held  under 460 

JOINT  STOCK  COMPANIES, 

how  differ  from  partnership  or  corporation 351 

removal  of  directors  of,  appointed  for  definite  period 397 

JOINT  TENANCY, 

in  personal  property 458 

JOINT  WILLS, 

as  distinguished  from  mutual 597 

JOINTURE, 

of  au  infant  married  woman  as  barring  dower 297,  298 

JUDGES 

in  England,  terms  of  during  good  behavior,  unless  removed  on  formal 

address  of  Parliament 49 

Federal,  removed  by  impeachment 49 

discretion  of,  in  discharging  jury  in  criminal  trials  before  verdict     63-65 
(See  Jeopardy.) 

JUDGMENTS, 

defined 560 

in  personam 560 

distinction  between  "judgment"  and  "  decree  " 560 

enforcement  of,  by  execution    .         560 

by  punishment  for  contempt  of  court 560 

for  value  of  property  converted  does  not  pass  title,  until  paid    .  560 

for  a  specific  thing  vests  title 561 

in  rem ....  561 

in  courts  of  admiralty 561 

necessity  of  notice  to  owner 561 

ownership  changed  by  its  own  force 562 

not  affected  by  repeal  of  statute  under  which  action  brought  ...  41 
of  courts  of  sister  States  or  of  foreign  countries  when  attacked  col- 
laterally for  fraud  or  want  of  jurisdiction 184 

against  domestic  corporations 361,  378 

against  foreign  corporations 378 

when  attachment  granted 378 

on  service  on  agent '^'^^ 

on  service  on  public  officer 379 

JURISDICTION, 

of  subject-matter  not  obtained  by  waiver  of  statute 37 

of  person  sometimes  obtained  by  waiver 37 

of  United  States  courts  over  patents 534 

over  trade-marks 544,  553 

JURY, 

trial  by,  in  case  of  felonies  secured  by  Magna  Charta 46 

trial  by,  in  civil  suits  at  common  law  secured  by  Magna  Charta       .  46 


jl2  INDEX. 

[References  are  to  Pages.] 

J  URY  —  continued. 

verdict  of,  must  be  unanimous 4*> 

accused  cannot  waive,  in  capital  cases  except  State  statute  coufers 

right • *^ 

trial  by,  in  felonies  preceded  by  indictment  by  grand 46 

grand,  at  common  law ,".     "     '  ^^' 

trials  by,  reviewed  by  United  States  Supreme  Court  according  to 

rules  of  common  law 51,  71 

trial  by  in  Territories  in  criminal  cases 50,  59,  60 

meaning  of,  as  used  in  Constitution  and  Sixth  Amendment    ...  59 

trial  by,  in  criminal  cases  guaranteed  by  Constitution 

applicable  solely  to  Federal  Courts 59 

applicable  to  Territories 60 

applicable  to  District  of  Columbia 60 

right  to,  exists  from  beginning 60 

not  applicable  to  petty  offences 60 

(For  regulations  respecting  trials  by,  in  criminal  cases,  see  Crimes; 

Grand  Jury.) 

trial  by,  preserved  in  suits  at  common  law  in  Federal  Courts  ...  71 

trial  by,  in  criminal  cases  in  State  under  Fourteenth  Amendment     .  76 

judges  as  to  law  and  fact,  when 81,  82 

JUSTIFICATION, 

as  a  defence  in  an  action  for  libel  or  slander 90-92 

(See  Libel;  Slander.) 


LAND, 

acquisition  of ,  by  alien    (See  Alien;  Real  Estate.) 

LAPSED  LEGACY, 

doctrine  of 614,  615 

LARCENY, 

grand  and  petty,  defined  at  common  law 451 

animals  subject  to 451 

when  finder  of  chattel  may  be  guilty  of   .     . 473 

LAW, 

common,  connected  with  prevailing  customs,  how  prescribed  ...  6 

due  process  of     (See  Due  Process  of  Law.) 

enactment  of  statute 8 

power  of  Congress 8 

power  of  State  legislature 8 

municipal,  defined 5-7 

of  State,  what  includes 5 

private  as  contrasted  with  public 3,  4 

domain  of,  what  includes 3,  5 

includes  private  international,  and  conflict  of  laws        ....  5 
rules  of,  applied  to  State  or  nation  seeking  to  vindicate  a  right 

analogous  to  private  right        5 

public,  governs  controversies  in  which  State  a  party,  or  between  indi- 
viduals, when  doctrines  of  public  nature  involved     ....  5 
includes  international,  constitutional,  criminal,  and  administrative  5 

rights  secured  by 2 


INDEX.  713 

[References  are  to  Pages.  ] 
LAW  —  continued. 

sanction  of,  punishment,  prevention,  remedy,  declaring  acts  in  oppo- 
sition to  right,  void 2 

States  of  Union,  what  consists  of 11 

statute,  how  prescribed 6 

when  takes  effect 7 

(  See  Statute  Law.  ) 

substantive  and  procedure  or  adjective 2 

United  States,  supreme  when  conflicting  with  State 1 

(See  CoMMOx  Law;  Statute  Law.) 
LEGACIES, 

abatement  of 619-621 

residuary,  as  contrasted  with  such  as  are  specially  named  .  .  620 
demonstrative,  as  contrasted  with  such  as  are  pecuniary  .  .  .  620 
specific,  as  contrasted  with  demonstrative  and  other  ....  620 
specific,  as  between  themselves  abate  proportionally  ....  620 
payment  of  some  legacies  and  subsequent  waste,  effect  of      .     .     621 

absolute  and  conditional 616,  617 

conditions  precedent  and  subsequent 616 

gift  to  executor  by  virtue  of  his  office 616,  617 

acceleration  of 615,  616 

acceptance  of,  presumed,  if  beneficial 636 

ademption  of 621-624 

when  said  to  be  adeemed 621 

when  legacy  is  specific 621,  622 

may  appertain  to  general  under  special  circumstances       .     .     .     621 

not  applicable  to  demonstrative 622 

once  adeemed,  not  restored  by  subsequent  confirmation  of  will  .     622 

gift  to  legatee  before  death 623 

double  portions 623 

distinction  between  ademption  and  satisfaction  ....      623,  624 
(See  subdivision,  satis/action,  below.) 

apportionment  of  payments  on  death  of  life  tenant 619 

charged  upon  land 627-630,  652 

by  implication 627-629 

where  the  question  is  between  the  legatee  and  owner  of 

land  considered  by  itself 627 

"  mixed  residue  " 628,  652 

express  charge 629,  630 

effect  of 629 

of  both  debts  and  legacies 629,  630 

charitable 633-636 

doctrine  of  remoteness  does  not  apply  to 633 

cy  pres  doctrine  to  uphold 634,  635 

superstitious  uses 634 

mortmain  statutes 634,  635 

civil  death  as  incapacitating  from  taking 634 

conditional 616,  617 

( See  subdivision,  absolute  and  conditional,  above. ) 

contingent 614-616 

(See  subdivision,  vested  and  contingent,  below.) 

corporations,  incapacity  of,  to  take 632,  633 

excepted  from  statute  of  wills 371-375,  632 


714  INDEX. 

[References  are  to  Pages.] 

LEGACIES  —  continued. 

New  York  legislation  restricting  bequests  to 632,  633 

creditor  of  testator,  legacy  to 624,  625 

cumulative,  what  are 612 

rules  for  determining 612,  613 

two  for  same  amount  to  same  person  presumed  not    .     .     .     612 

legacies  in  different  instruments  generally  are 612 

but  simple  repetition  in  different  instruments  if  exact  will 

not  be  regarded  as 612 

different  instruments  must  be  closely  examined     ....     612 
several  gifts  to  strangers  in  different  instruments  presumed 

to  be 613 

first  and  second  codicils  not  regarded  as  separate  instru- 
ments      613 

legacies  to  "servants";  if  descriptive,  repetitious  ;    if  to 

identify,  cumulative 613 

debtor  of  testator,  legacy  to 626 

demonstrative,  meaning  of  term 610 

pecuniary  legacy  given  with  particular  security  is 610 

distinction  between  specific  and,  i.s  to  abatement  and  ademp- 
tion            610,  611 

(  See  subdivisions,  abatement,  ademption,  above.) 

duty  on      .  657 

executor,  gift  to,  by  virtue  of  his  office 616,  617 

right  of,  to  undisposed  residue 638 

general,  what  included  in 611-613 

ademption  may  appertain  to,  under  special  circumstances     .     .     621 

interest  on 655-657 

will  not  begin  to  run  until  a  year  after  testator's  death     .     .     .     655 

when  implied 655,  656 

when  legacy  is  charged  on  land 655 

when  given  by  a  parent 656 

rule  in  England  when  to  illegitimate  children 657 

to  wife 657 

incidents  of 619-627 

(See  subdivisions,  abatement,  satisfaction.) 

lapse,  doctrine  of 614,615 

life  tenants,  right  to  enjoy  specific  legacy  in  its  original  form       .  617,  618 

where  consumable 617 

to  dividends  on  stock  bequeathed 618 

apportionment  of  payments  on  life  tenant's  death 619 

monk,  capacity  of,  to  take 636 

murderer  of  testator  cannot  take 637 

ownership  or  right  of  legatee 613-619 

(See  subdivisions,  absolute  and  conditional,  qualified  ownership  in, 
vested  and  contingent.) 

payment  of 654-657 

(See  Executors  and  Administrators.) 

perishable  articles,  partial  gift  of 617,  618 

if  residuary  gift  of,  intent  that  they  be   sold  and  converted 

into  permanent  property  presumed 617 

perpetuities,  rule  against 615 

(See    Perpetuitiks.) 


INDEX.  715 

[References  are  to  Pages.] 
LEGACIES  —con/mwerf. 

qualified  ownership  in 617-619 

articles   which  can  and  cannot  be  used    without  consuming, 

where  partial  gift  of 617,  618 

life  tenant's  right  to  dividends  on  stock 618  619 

apportionment  of  payments  on  life  tenant's  death  ....  619 

repetitious 612  613 

(See  subdivision,  cumulative,  above.) 

residuary,  what  are qh 

may  be  a  residue  of  portion  of  estate 611,  612 

satisfaction  of     , 624-627 

distinction  between  satisfaction  and  ademption 623,  624 

in  general,  where  to  testator's  creditor 624  625 

of  same  nature  as  testator's  debt ;  equal  or  greater  amount, 

presumed  satisfaction  of  debt 624 

such  presumption  overcome  by  slight  circumstances  .     .     .     624 

to  satisfy  debt  must  be  of  a  fixed  amount 625 

different  presumption  from  general  language  of  will .     .     .     625 
parol  evidence  admissible  to  show  legatee  was  a  creditor     .     625 

as  between  parent  and  child 625-627 

"  double  portions  " 623,625,626 

specific,  definition  of 608-610 

mere  exemption  from  general  mass  of  estate  does  not  make  be- 
quest "  of  the  rest  "  of  property  specific 609 

substitutionary 612  613 

(See  subdivision,  cumulative,  above.) 

undisposed  residue,  executor's  right  to 638 

vested  and  contingent 614-616 

doctrine  of  lapse 614,  615 

rule  against  perpetuities 615 

acceleration 615,  616 

void 630-637 

illegality;  remoteness 630,631 

fraud 631 

uncertainty 631 

want  of  capacity  to  bequeath 631 

incapacity  of  legatee  to  take 631 

corporations 632,  633 

charities 633-636 

individual  legatees 636,  637 

effect  of 637,  638 

goes  to  residuary  legatee 637 

LEGATEE, 

capacity  to  take,  where  civilly  dead 634 

corporation,  capacity  to  be 632,  633 

creditor  of  testator,  as 624,  625 

debtor  of  testator,  as 626 

executor,  gift  to,  by  virtue  of  his  office 616,  617 

life  tenant's  right  to  enjoy  specific  legacy 617,  618 

monk,  capacity  to  be 636 

murderer  of  testator  cannot  take  as 637 

ownership  or  right  of  legatee 613-619 

(See  Executor  and  Admixistrator;  Legacies;  Will.) 


y-j^g  INDEX. 

[References  are  to  Pages.] 

LEGITIMACY,  o^r  .,  e.. 

ii„  266,  Job  et  seq. 

see  geuerally '  ^ 

when  au  issue  in  divorce iV'^'oroorI 

presumption  as  to •     •     •    i<o, -ou, -ux 

rSee  Bastardy;  Divorce;  Parent  and  Child.) 

•  257 

retroactive,  what  is or-  q-q 

as  affected  by  domicile  of  parent Joo,  -^^ 

establishment  of,  by  direct  proceeding -t)4 

I ETTERS 

obscene,  law  prohibiting  mailing  of,  constitutional,  though  sealed  .       57 

imputine  an  atrocious  crime  not  necessarily  obscene 57 

•  4Q() 

property  in 

(See  Literary  Property.) 

publication  of  confidential 492 

patent  and  close,  defined 505 

of  administration ^^5'  ^^^ 

testamentary ^^^ 

(See  Executor  and  Administrator.) 

LIBEL, 

civil  and  criminal  libel  defined 80-82 

communications  absolutely  privileged  in  actions  for 89 

words  used  in  judicial  proceedings 89 

words  used  in  legislative  debate 89 

official  reports  of  legislative  debate 90 

communications  conditionally  privileged  in  actions  for,  defined  .     .  87 

charges  against  officers  to  their  superiors 88 

reports  of  court  proceedings 88 

criticisms  on  acts  of  public  men 88 

statements  concerning  the  character  of  servants,  tradesmen,  etc.  88 

criticism  on  literary  works,  etc 89 

defences  to  action  for 90 

defined 80 

denial  and  justification  as  defences  in  action  for 90 

injunction,  when  cannot  be  granted  to  prevent 82 

trade,  may  be  enjoined  in  England 82,  83 

or  where  pursuant  to  conspiracy 82 

jury  judges  both  of  law  and  fact,  when 81,  82 

justification,  in  criminal  action  for 91 

in  civil  action  for 91 

defence  of,  must  be  proved,  with  accuracy,  in  action  for ...  92 

if  attempted  and  fails  damages  enhanced 92 

malice  in  an  action  for,  when 87 

inferred  when  defendant  justifies 91 

mitigating  circumstances  in  actions  for 92 

general  bad  character  of  the  plaintiff 92 

provocation  by  plaintiff 92 

insanity  or  intoxication  of  defendant 93 

retraction  and  apology 93 

conduct  of  plaintiff  conducing  to  reasonable  belief  in  guilt  .     .  93 

evidence  bearing  on  motive  of  defendant 93 

on  administration  of  justice 82 

privileged  communications  in  actions  for 87,  90 


INDEX.  717 

[References  are  to  Pages.] 

LIBEL  —  continued. 

publication  of     ...... 80,  81 

distinction  in  civil  and  criminal 80,  81 

indirect,  sufficient 81 

by  seller,  when  ignorant 81 

each  a  distinct  injury 81 

question  of  law,  when 81 

LIBERTY.     (See  Peksonal  Liberty;  Habeas  Corpus;  Bail;   Re- 
ligion ;  Freedom  of  Speech.) 

LIBRARIES, 

devises  to,  in  trust  in  New  York 372-375 

LICENSE, 

to  practice  avocation  when  unconstitutional 128,  129 

imposed  on  foreign  corporation 353 

as  exercise  of  police  power 433-438 

of  a  patent  right 526,  531 

LITERARY   PROPERTY, 

at  common  law,  title  to 488-494 

plays 488-490 

letters 490 

pictures  and  statues 491 

translations,  annotations,  catalogues,  etc 491 

lectures,  trade  secrets,  other  cases  of  breach  of  trust,  etc.       .  492-494 

remedies  for  infringement  of  rights  in 494 

immoral  publications  not  recognized  as 493 

dedication,  effect  of,  upon 489 

(See  Copyright.) 

LORD   CAMPBELL'S   ACT, 

provisions  of    ...     -  77,  251 

as  re-enacted  in  the  several  States 78,  251 

general  rules  as  to  recovery  under 252,  253 

effect  of  contributory  negligence 252 

local  effect  of  statute 252 

extends  to  actions  in  personam  only 252 

damages  for  mental  suffering  not  recoverable 253 

not  a  bar  to  action  for  damages  to  estate  of  deceased  ....     251 

when  applicable  to  injury  committed  on  high  seas 253 

right  of  child  in  recovery  under,  for  death  of  father 255 

LUNATICS, 

jurisdiction  of  equity  over 305,  306 

mode  of  proceeding  to  determine  who  are 306,  307 

inquisition 306,  307 

when  superseded  or  suspended 307 

effect  of  adjudication 307-311 

contracts,  wills,  etc 308 

committees  or  guardians  of 309 

foreign  committee  or  guardians 310 

theory  on  which  the  lunatic's  estate  should  be  managed  by  the  court     309 


y28  INDEX. 

[References  are  to  Pages.] 

MAGNA  CHARTA,  . 

indictment  by  grand  and  trial  by  petty  jury  in  case  of  felonies     .      45,  46 
does  not  prevent  proceeding  by  information  in  case  of  misdemeanor  .       46 

doctrines  of,  adopted  in  United  States 46,  49 

trial  bv  iurv  in  civil  common-law  cases  secured  by 46 

•^  ''    "^  (See  Jury.) 

meaning  of  expressions  "judgment  of  his  peers  "  and  "  law  of  the 


land ' 


46 


MALICE, 

in  libel  and  slander 87,  90,  91,  93 

(See  Libel;  Slander.) 

MANDAMUS, 

to  place  in  office  persons  elected  officers  of  corporations 364 

to  compel  action  by  corporation 389 

MARITIME.     (See  Admiralty.) 

MARRIAGE, 

absence  of  husband  for  seven  years,  second,  after       ....       148,  160 
age,  want  of,   when  incapacitates   from,   at  common   law  and   by 

statute 142,  143 

capacity  to  contract,  presumed 142 

cohabitation,  when  evidence  of  ratification  of 150 

cohabitation  after,  without  consummation 147 

collaterally  questioned,  when  may  be 143 

common  law,  when  valid  at 154 

consanguinity  and  affinity,  as  affecting  capacity  for 145-147 

consent  to,  by  future  words 152 

consummation,  want  of,  as  a  ground  for  invalidating 147 

contracts  of,  defined 151 

contracts  of  husband  and  wife  in  force  prior  to,  not  affected  by,  in 

New  York 223 

(See  Husband  and  Wife.) 

corporeal  impotence,  when  incapacitates  from 147,  148 

deceased  wife's  sister,  as  to,  with  .  146,158 

dissolution  of,  various  modes  of 160,  161 

(See  Divorce.) 

domicile  as  affecting  capacity  of  parties  to 146,1.57,1.58 

elements  of,  consent,  present  words,  freedom  to  act  .     .     .     151,  152^  154 

evidence  of,  when  direct,  necessary 152 

registration  of,  as _     257 

indirect,  and  presumptions  as  to 154-1.57 

cohabitation        255 

general  reputation 156 

declaration  of  parties 156 

recognition 156^  I57 

force  and  fraud,  when  invalidates 144 

foreign,  validity  elsewhere 157-159 

(See  Divorce;  Husband  and  Wife.) 

form  of,  in  England 1,52-154 

in  Linited  States I53   154 

Gretna  Green I53 

incapacity  to  contract 142-151 

defect  in  age  at  common  law  and  by  statute 142,  143 


INDEX.  719 

[References  are  to  Pages.] 

MARRIAGE  —  continued. 

incapacity,  —  mental  unsoundness 143    144 

force  and  fraud I44 

consanguinity  and  affinity 145-147 

corporeal  impotence I47    143 

prior  marriage 148 

miscegenation J49 

incestuous,  what  is I45 

law  of  place,  validity  of,  as  determined  by 146,  157-159 

Levitical  degrees,  when  within I45    HQ 

miscegenation,  or  mixed I49 

(See  Miscegenation.) 

polygamous,  what  is 148 

presumption  as  to  capacity  to  enter  into 142 

as  to  the  existence  of 154-157 

prior  marriage 148 

registration  of,  as  proof  of I57 

second,  after  absence  of  husband  for  seven  years 148,  160 

slaves,  as  to,  between 150 

(See  Slavery.) 

validity  of,  determined  by  what  law .     157 

void  or  voidable,  when 143-151 

who  may  avoid I43   144 

(See  Divorce.) 

will,  revocation  by  subsequent ,     .  595 

(See  Will.) 

MARRIAGE  SETTLEMENTS, 

construction  as  affected  by  domicile 223 

(See  Husband  and  Wife  ;  Separate  Estate  of  Wife.) 
of  infants 297,  298 

MARRIED  WOMEN'S  ACTS  IN  NEW  YORK 198 

MARRIED   WOMEN'S   PROPERTY   ACT,    1882  AND  1884      .     .     198 

MASTER   AND    SERVANT, 

alter  ego,  the  doctrine  of 332 

apprenticeship  considered  in  connection  with  law  of 315-323 

(See  Apprenticeship.) 

breach  of  contract  of  service,  by  servant 325-327 

where  contract  entire 326 

wages  "  payable  monthly  " 326 

breach  of  contract  by  master 327,  328 

action  for  wages 328 

action  for  damages 328 

quantum  meruit .....  328 

care  required  of  master,  in  selection  of  tools     . 328,  330 

in  selection  of  co-servants 330-336 

common  employment,  when  servants  are  engaged  in 331 

contributory  negligence  of  servant  as  preventing  recovery  against 

master 330 

in  use  of  defective  tools 330 

in  case  of  negligence  of  co-servants 334 


yOQ  INDEX. 

[References  are  to  Pages.] 

MASTER   AND   SEUY  Al^T  -  continued.  oonooR 

co-servants,  who  are '     "     " Sv  Sq 

must  be  the  same  common  employment 66i.'666 

doctrine  of  alter  ego ^^^ 

under  maritime  law ^^^ 

same  master • ^^Z 

under  Employer's  Liability  Act  in  England 660 

r        J  "  OOP-     q^Q 

volunteer  servants ^^^'  ^^^ 

discbarge  of  servant,  for  incompetency  or  misconduct     ....  326,  327 

wrongful 

duties  of  master,  to  servant  . 327-336 

to  continue  the  service  and  pay  the  agreed  wages     ....  327, 328 

to  use  due  care  in  selection  of  tools,  etc 328, 330 

to  use  reasonable  care  in  selection  of  co-servants     ....  330-336 

not  bound  to  supply  medical  attendance 336 

nor  certify  to  servant's  character •     336 

duties  of  master  toward  third  persons 336-343 

when  under  a  contract p36 

toward  strangers 337-343 

employment  of  contractor 337-339 

involuntary  employment 339 

act  without  scope  of  employment 339 

must  owe  duty,  trespasser 342 

duties  of  servant 3i-5-3l7 

to  continue  in  service 325, 326 

to  possess  necessary  skill 326 

to  refrain  from  misconduct  subversive  of  relation 327 

to  respond  in  damages  for  injuries  to  third  persons  caused  by 

himself 327 

not  to  disclose  trade  secrets 327 

duty,  legal,  of  master 338 

where  imposed  by  statute 338 

where  imposed  by  general  rule  of  law 338 

enticement  of  servant,  master's  right  to  sue  for 344 

foreign  contract  of  service  bi'ought  in  question  here 346 

gratuitous  or  volunteer  service 347-349 

compensation,  when  allowed 347 

person  rendering,  when  a  co-servant 335,  349 

knowledge  of  servant  or  notice  to  . 342,  343 

as  to  viciousness  of  animal 454 

liability  of  master,  for  defective  tools  and  machinery      ....  328,  330 

liability  of  master  for  acts  of  co-servants 331-335 

some  common  employment,  and  same  master 331-333 

made  to  depend  on  character  of  act 333 

when  master  works  with  servant 334 

servants  brought  into  collision  by  rules  of  master 334 

liability  of  servant  to  third  persons  for  wrongful  acts 346 

liability  of  servant  to  respond  in  damages  to  master  for  wrongful 

acts 327 

misconduct  of  servant  subversive  of  relation  of      .......     327 

mutual  mistake  as  to  existence  of  relation  of,  right  to  compensation     348 
negligence  of  master  toward  servants  in  furnishing  tools  and  fellow- 
servants       328-335 


INDEX.  721 

[References  are  to  Pages.] 

MASTER   AND    SERYAKE  —  continued. 

notice  to  or  knowledge  of  servant .  340  343 

relation  of,  characteristics 323-3"'5 

contrasted  with  other  relations 323-325 

principal  and  agent 323 

employer  and  contractor 323,  337-339 

two  supposable  masters 323  324 

single  act  of  service 324 

partnership 324 

subservants 324 

personal,  and  not  assignable 395 

must  exist  before  service  performed 325 

respondeat  superior,  doctrine  of 337-843 

not  applicable  to  employer  and  contractor 337-339 

except  where  act  illegal 337 

or  master  controls  act 337 

or  he  is  under  an  absolute  duty 338,  339 

nor  to  involuntary  hiring 339 

acts  within  scope  of  employment 339-342 

act  done  in  performance  of  master's  contract 336 

master  must  owe  duty  to  person  injured 342 

not  applicable  to  public  officers 342 

not  applicable  to  charitable  institution 343 

not  applicable  to  the  relation  of  bailor  or  bailee 342 

where  servant  uses  the  property  of  two  or  more 323 

(See  Service.) 

rights  of  master  to  sue  for  loss  of  service 343-345 

where  injury  arises  from  breach  of  contract 343,  345 

seduction 344 

enticement 344 

rights  of  servant  against  third  persons 345 

slavery  part  of,  law  of 313,314 

(See  Slavery.) 

scope  of  employment,  defined 339-342 

seduction  of  servant,  master's  right  to  sue  for 344 

skill  impliedly  warranted  by  servant 326 

subservant,  who  is 324 

MAXIMS, 

how  differ  from  rules  of  law 16 

"  he  who  seeks  equity  must  do  equity  " 194 

"  no  trust  shall  fail  for  want  of  a  trustee  " 219 

"  he  who  clings  to  the  letter  adheres  to  the  bark  " 33 

"  the  spirit  of  the  law  is  the  life  of  the  law  " 33 

^^exprexsio  unius  exclusio  alterius" 37 

' '  ubi  jus,  ibi  remedium  " 8 

^^  ut  res  magis  vnleat  quam  pereat''^ 35 

'•  he  is  the  father  who  is  shown  to  be  such  by  the  marriage  "  .     .  233,  257 

^^  volenti  no7i  fit  injuria" 248,335 

"every  one  must  so  use  his  own  as  not  to  injure  another's"    .     .  338,  339 

"  the  safety  of  the  people  is  the  supreme  law  " 431,432 

**■  quod  non  capit  Christus  fiscus  " 476 

46 


J22  INDEX. 

[References  are  to  Pages.] 

MENTAL  UNSOUNDNESS, 

as  affecting  marriage 1^3 

(See  Marriage  ;  Lunatics.) 

MENTAL   SUFFERING, 

not  an  element  in  damages 253 

MILITARY  LAW,  ^ 

how  related  to  civil  law IL,  14 

MILITARY   TENURE, 

abolished • 270 

MINOR.     (See  Infants.) 
MISCEGENATION, 

prohibited  by  State  laws 149 

MITIGATING   CIRCUMSTANCES, 

as  defences  in  actions  for  libel  or  slander 92,  93 

(See  Libel  ;  Slander.) 

MONOPOLIES, 

patent  rights  excepted  from  statute  against 505-507 

MORTGAGE, 

trade-mark,  mortgagees' rights  to 548 

MORTMAIN    ACTS, 

in  England  and  United  States 370,  634 

MUNICIPAL  CORPORATIONS, 

liability  for  acts  of  servants  when  under  legal  duty 338,  367 

defined 351 

charter  of  not  a  contract 855,  398,  399 

ordinances  of 365 

in  restraint  or  regulation  of  trade 365,  366 

when  strictly  construed 366 

legislation  not  administration 366 

creation  of  monopolies  by 366 

not  liable  for  negligence  of  its  officers 366,  367 

dissolution  of  by  legislature 398 

exercise  of  right  of  eminent  domain  by 427,  437 

membership  of 362 

MUTUAL   WILLS, 

what  are 597 

distinguished  from  joint  wills 597 

NATURALIZATION, 

power  of  vested  in  Congress 126 

power  of,  conferred  on  State  Courts,  procedure 126,  127 

requirements  applicable  to 127 

declaration  of  intention 127 

admission  to  citizenship,  regulations,  etc 127 

of  husband  includes  wife  and  minor  children 128 

by  marriage  of  alien  woman  to  citizen 128 

collective,  by  general  statute 128 

death  of  declarants  before 127 

cannot  be  made  retroactive 128 


INDEX.  723 

[References  are  to  Pages.] 

NECESSARIES, 

for  wife's  support,  what  are 200-202 

liability  of  husbaud  for  wife's 200-205 

for  support  of  infant,  what  are 287-289 

presumption  as  to      .     .     , 287   288 

functions  of  judge  and  jury  in  determining 287   288 

includes  support  of  wife  and  children 288 

(See  Infants.) 

NEGLIGENCE, 

contributory,  in  actions  for  injuries  causing  death       ....     252,  25-3 
of  master  toward  servant  in  selection  of  machinery  and  servants    328-335 

of  servant  when  that  of  master 336-342 

contributory,  of  servant  preventing  recovery  against  master      .     330-334 

NEW   CODE   AND   NOVELS.     (See  Civil  or  Roman  Law) 

NEW  YORK, 

statutes  do  not  take  effect  until  twenty  days  after  passage  ....         7 
statute  and  common  law  of  England  and  the  Colony  of  New  York 

prior  to  April  19,  1775,  still  law  in,  subject  to  change      ...      10,  21 
statute  modifying  the  common  law  rule  against  inheritance  by  aliens     134 
statutes  as  to  second  marriage  where  first  spouse  is  absent  and  un- 
heard of  for  five  years 148 

law  of  divorce  in 162,  173,  176,  178 

judicial  separation  of  husband  and  wife  under  the  laws  of       .       187,  188 
Married  Women's  Acts    ....     198,  199,  207,  209,  211-215,  221-223 

wills  by  married  women  in   .     . 224,  225 

Civil  Damage  Act 226-229 

admissibility  of  husband's  or  wife's  testimony  for  or  against  each 

other,  under  the  laws  of 232 

statute  for  the  maintenance  of  poor  relatives 234 

laws  of,  respecting  devises  to  corporations 372-375 

laws  of,  respecting  dissolution  of  corporations 402,  403 

outline  of  statutes  of,  as  to  creation  of  corporations  ....       413,  414 

remedies  in.  against  directors  of  corporations 396,  413 

power  of  religious  corporations  to  alienate  land  in 376 

remedies  against  coi-poration  for  abuse  of  powers  in 390 

proceedings  to  condemn  property  in 427 

law  of,  respecting  taking  property  by  public  necessity 430 

law  of,  respecting  powers  as  to  real  estate 464 

statutes  of.  relating  to  wrecks 478 

assignment  for  creditors  under  the  laws  of 563,  564 

laws  of,  as  to  the  making  of  wills 58.5-599 

statutes  of,  concerning  adoption 266,  267 

statutes  of,  modifying  the  disabilities  of  illegitimacy     .....     265 

appointment  of  guardians  under  the  laws  of     .....     .       273,  274 

apprenticeship  under  the  poor  laws  of 322 

NON   RESIDENTS, 

discriminations  against 128,  129 

right  of  to  sue  in  courts 129 

NOTICE, 

to  servant,  when  notice  to  master 343,  452 

to  owner  of  animals  of  vicious  propensities 452 


J24:  INDEX. 

[References  are  to  Pages.] 

NUISANCE, 

public  and  private  defined '» 

remedies  for °^ 

powers  of  boards  of  health  in  cities,  etc.,  over 8U 

NUNCUPATIVE   WILLS 586 


OCCUPANCY, 

as  a  method  of  acquiring  title  to  personal  property 480,  481 

OFFICERS, 

public,  not  liable  for  servant's  acts 342 

ORDINANCES, 

of  municipal  corporations 365,  366 

(See  Municipal  Corporations.) 

OUTLAWRY.    (See  Civil  Death.) 

OWNERSHIP, 

in  real  and  personal  property 416 

origin  of 416 

separate  and  joint  and  by  village  communities 415-418 

things  not  the  subject  of  private 421,  4"-'2 

attributes  of 439 

to  sell  or  exchange  or  pledge 4:'iO 

to  abandon 441 

to  dispose  of  by  will 441-443 

succession  in  case  of  intestacy 44:)-446 

absolute  and  qualified 440-450 

equitable  and  legal 45(5,  4.57 

separate,  joint  and  in  common 458-4 'JO 

in  future  estates 4G0-462 

suspension  of,  in  personal  property 4(34-467 

judgment  for  the  value  of  property  converted  does  not  pass  title  to 

the  wrongdoer  until  paid .560 

judgment  for  a  specific  thing  vests  title Sfil 

of  legatee 613-019 

changed  by  the  force  of  a  judgment  in  rem 562 

as  to  title  by  an  act  of  law  (see  Forfeiture;  Escheat;  Tax- 
ation ;  Eminent  Domain;  Judgment;  Bankruptcy  and 
Insolvency;  Assignment  for  Creditors;   Succession.) 

PANDECTS.    (See  Civil  or  Roman  Law.) 
PARENS   PATRIAE, 

doctrine  defined 242,  274 

(See  Parent  and  Child;  Guardian  and  Ward.) 

as  authorizing  private  act  for  sale  of  infants'  realty 279 

authority  over  infants  under,  begins  from  filing  bill 280,  281 

jurisdiction  over  idiots  and  lunatics  derived  from  doctrine  of  .     .     .     305 
PARENT   AND   CHILD, 

adoption  of  children 266,207 

under  civil  law 206 

by  N.  Y.  statute 266, 267 


INDEX.  725 

[References  are  to  Pages.] 

PARENT   AND   ClULD  —  continued. 

apprenticeship  of,  consent  of  parent  to 315  319 

custody  of  cliild,  writ  of  habeas  corpus  to  enforce  claim  for      .  97,  98   174 

between  parents  on  habeas  corpus 240-242 

when  awarded  to  father 98   99 

not  determinable  under  habeas  corpus  in  United  States  Courts  .     100 

on  divorce 174-176 

(See  Divorce.) 

on  separation  agreement 217.  242 

right  of  parent  to 239-242 

as  between  parents,  on  habeas  corpus 240-242 

in  equity 040 

may  be  renounced  by  contract 243 

removal  of  child  beyond  the  jurisdiction  of  court  by  parent  .     .     244 

when  illegitimate,  with  mother 2(j2 

discipline  and  training  oi  child 244-240 

divorce,  duty  of  father  after,  and  custody  of,  by  mother      ....     239 

custody  of  children,  upon 174-176 

(See  Divorce.) 

domicile  of  child  when  legitimate 255 

when  illegitimate 258,  259 

(See  Domicile.) 

duties  of  children  toward  parents 256 

maintenance 233,  234,  256 

protection 256 

(See  Poor  Laws.) 

duties  of  parents  toward  children 233-239 

support    233-237 

protection 237 

education 237,  238 

education  of  child,  parents'  duty ,    .     .     .     .  244-246 

religious 245,  246 

emancipation  of  child  by  father 247 

estate  of  cliild,  father  no  right  to,  except  as  guardian 254 

illegitimate  children 257 

when  mother  at  birth  and  conception  unmarried     ....  257,  260 
when  mother  is  married  but  husband  is  not  the  father      .     .     .     260 

when  mother  at  birth  of  child  is  a  widow 261 

status  of,  at  common  law  and  by  statute 258,  263,  265 

rights  of.  how  affected  by  domicile  of  parent 258,  259 

duty  of  father  to  support 262 

custody  of  with  mother 262 

obligation  of  support,  a  consideration  for  upholding  promise     .     264 
infant's  father  may  be  bound  to  support    ........     296 

provision  for,  benefit  of 264 

establi.<hment  of  legitimacy  of 264 

rights  of  under  American  statutes 265 

guardian  of,  not  appointed  by  will 273 

legitimacy  of  child  of  bigamous  marriage 100 

in  case  of  adultery  and  divorce 173 

legitimacy  and  illegitimacy  defined 233,  250,  el  seq. 

presumed 173,  260,  261 


rr26  INDEX. 

[References  are  to  Pages.] 

PARENT   AND   CmLD  —  continued. 

legitimacy,  establishmeut  of -^o* 

(See  subdivision,  illegitimate  children,  above.) 

religious  education  of  a  child 24o,  246 

rights  of  child  as  such "^^j-?. 

in  case  of  injury  causing  death  of  father ;     "•?? 

under  civil  damage  act 226,  254,  2oo 

(See  Civil  Damage  Act.) 


under  copyright  laws 


"JOO 

under  Homestead  laws _  -^^ 

satisfaction  of  legacies  as  between 625,  627 

seduction  of  child,  parent's  right  of  action  for 1.48 

(See  Seduction.) 

services  of  child,  father's  right  to 246 

emancipation  of  child -y 

actions  for  loss  of 247--o4 

04.S 
seduction *'"*'-^ 

(See  Seductiox.) 

other  actions -^0 

(See  Injuries  Causing  Death  ;  Lord  Campbell's  Act.) 

status  of  legitimate  child 255 

(See  Status.) 

support  of  child,  allowance  for  out  of  child's  estate 235,  236 

parent's  duty 233-237 

out  of  mother's  estate,  father  being  alien 236,  237 

duty  of  mother  on  father's  death 239 

duty  of  father  after  divorce,  and  custody  with  mother      .     .     .     239 

when  illegitimate 262,  264,  296 

support  of  parent,  child's  duty 233,  234,  256 

torts  of  child,  parent  not  liable 238 

will  of  parent,  right  to  ignore  children 238 

restriction  on  parent's  right  to  leave  estate  to  charity  ....     238 

PARLIAMENT, 

power  to  make  laws,  as  compared  with  Congress 28,  41,  43 

Colonial  Legislature,  acts  of,  when  void  as  ultra  vires 43 

"  PAROL  TO  DEMUR," 

right  of  the 291 

PARTNERSHIP, 

of  husband  and  wife 214 

how  differs  from  a  corporation 350,351,395 

trade-mark  as  affected  by  the  sale  of  the  business,  including  trans- 
fers on  the  dissolution  of  a 549 

bankrupt  proceedings  peculiar  to 573,  574 

PATENTS, 

abandonment  of  invention 511 

after  filing  application 524 

as  a  defence  to  an  action  for  infringement 539 

anticipation  of  invention 513,  515 

appeal  in  other  than  interference  cases 523 

assignment  of 525,  526 


INDEX.  727 

[References  are  to  Pages.] 

PATENTS  —  continued. 

assign meut  of  inveutiou 524 

cui-eat 507,  511,  517 

claim  and  disclaim 517,521 

combinations  of  old  material,  right  to 508 

death  of  inventor  before  patent  issued 524 

damages  for  infringement  of 536,  539 

defences  to  an  actiou  for  infringement ;  prior  use,  abandonment,  and 

want  of  novelty 537-539 

equivalents  defined 534 

foreign  patents,  where  prior 510 

improvements  upon  existing  machine,  right  to,  where 508 

infringement 534 

remedies  for , 537-540 

damages  for 536,  539 

interference  cases 523 

invention  or  discovery,  what  is 512-516 

principle  or  property  in  matter 512 

product  of  machines 512 

anticipation,  novelty 513,  515 

utility 515 

jurisdiction  of  State  and  United  States  courts 534 

of  equity  to  vacate 536,  539 

licenses  of  right 526-531 

married  women's  right  to 213 

novelty  as  an  element  of  patentability 513,  515 

origin  of  law  of 505-507 

power  to  grant  vested  in  Congress 506,  534 

proceedings  in  patent  office 516-524 

caveat 507,  511,  517 

specification 521 

claim  and  disclaim 517,  521 

surrender  and  reissue 522 

interference  cases 523 

appeal  in  other  than  interference  cases 523 

abandonment  after  filing  application 524 

assignment  of  invention 524 

death  of  inventor  before  patent  issued 524 

process,  distinguished  from  machine,  under  laws  of 

512,  516,  521,  532,  533 

public  use.  under  law  of,  defined 510)  ^^^ 

published  description  of  invention,  where 509 

reissue,  surrender  and 522 

remedies  for  infringement 537-540 

actions  at  law 537 

suits  in  equity 539,  540 

renewal  or  extension  of 525 

ricrhts  acquired  by .524-534 

royalty  on  license  of 528,  535 

scire  facias,  at  common  law  as  a  remedy  against  patentee  .     .     .     •     535 

specification 521 

subject-matter  of 512-516 


y28  INDEX. 

[References  are  to  Pages.] 

PATENTS  — con/mwerf.  „  .^^ 

what  is  not  patentable 514-516 

what  is  patentable 

surrender  and  reissue r^n-  :C^o 

to  whom  granted  under  United  States  laws ^^'..Z 

where  improvements  upon  existing  machines ouo 

combination  of  old  material ^^^ 

invention  described  in  printed  publication J'»y 

invention  first  patented  in  foreign  country 51^ 

invention,  use  by  others  in  United  States 510 

invention  suffered  to  go  into  public  use olO 

invention,  abandonment  of ^Jl 

use  of  invention  by  others  in  United  States oU) 

utility  of  invention ■.;;;:     '.535,536 

vacating _ 

proceedings  by  United  States °;^^ 

by  individual 5;^? 

scire  facias  at  common  law 535 

PEACE, 

King's,  of  State  and  United  States ^^'■ 

right  of  wife  to  compel  husband  to  give  bonds  to  keep 229 

PERPETUITY, 

defined 4^6 

charitable  gifts  not  subject  to  the  prohibition  against     .  466,  467,  633-636 

PERSON, 

natural  or  artificial "^ 

artificial  may  be  corporation,  State,  foreign  prince,  natural  person 

having  artificial  character 2,  350 

(See  Corporations.) 

as  possessing  rights  and  having  standing  in  court 2,  4 

as  being  bound  to  submit  to  exercise  of  rights  by  others 3 

right  may  not  be  enforceable  against  all  artificial  persons,  as  State 

or  United  States 3 

(See  State;  Sovereign;  Petition  of  Right.) 

not  synonymous  with  individual 4 

one  civilly  dead  not  a 4 

private  or  public 4 

rights  of  private,  governed  by  private  law 4 

(See  Law.) 

rights  of  public,  governed  by  public  law 5 

(See  Law.) 

one  entitled  to  present  claim  in  court 45 

not  to  be  deprived  of  life,  liberty,  or  property  without  due  process 

of  law 72,  73 

nor  denied  equal  protection  of  the  laws 73 

when  Indian  a 312 

corporation  when  a 330,  351,  404 

PERSONAL  CONTRACT  OR  RELATION, 

apprenticeship,  a 316,  317 

master  and  servant 325 

agreement  between  author  and  publisher 501,  502 


INDEX.  729 

[References  are  to  Pages.] 

PERSONAL  LIBERTY, 

constitutional  provisions  in  furtherance  of 53-77,  94 

remedies  for  violation  of 94 

action  for  false  imprisonment  and  habeas  corpus 94,  95 

(See  Habeas  Corpus;   Extradition.) 

PERSONAL  PROPERTY, 

abandonment  of,  right  of 441 

absolute  or  qualified  ownership  in 449-456 

wild  animals 45O 

bodies  of  the  dead 450-453 

bailments 455 

accession  as  a  means  of  acquiring  title 481-486 

young  of  domestic  animals 4Si 

acquisition,  methods  of 468 

act  of  tiie  law,  title  by 555 

assignment  for  the  benefit  of  creditors  as  a  means  of  transferring  the 

title  of  a  failing  debtor  to .  562-565 

bankruptcy  and  insolvency  proceedings  as  a  means  of  transferring 

title  to 567-581 

proceedings  under  former  U.  S.  bankrupt  act 568-577 

insolvency  under  State  statutes 577-581 

capture,  title  by 469-472 

booty 469-471 

prize 471 

composition  deeds,  transfer  of  title  of,  by 565,  566 

conditional  sale  of 424 

confusion,  as  means  of  acquiring  title  to 486,487 

conversion  in  equity  of 420 

destruction  of,  in  case  of  necessity 559 

distinctions  peculiar  to 439-446 

(See   Ownership.) 

distinctions  between,  and  real  property 419,  420 

eminent  domain,  right  to  take,  under 559 

equitable  or  legal  ownership  of 456 

escheat,  title  to,  by 557,  558 

executors  and  administrators,  administration  of  decedent's  estate 

by 643-668 

failing  debtor,  title  from 562-581 

finding,  title  by  ;  on  land,  treasure  trove  ;  at  sea,  derelicts      .     .  472-480 

forfeiture,  title  to,  by 555-557 

future  estates  in 460-467 

remainders 461 

executory  devises 461 

powers 462 

incorporeal,  title  to 488-554 

infancy,  ratification  of  sales  of,  made  during 291 

intestacy,  succession  in  case  of 443-446,  638-643 

joint  tenancy  in 458 

judgment,  title  by 560-562 

lease  for  years ,     420 

legacies 608-638 

literary  property,  title  to  at  common  law 488-494 


rroQ  INDEX. 

[References  are  to  Pages.] 

PERSONAL  FROFERTY  -  continued.  494_505 

copyright len  4«l 

occupancy,  title  by 480,481 

.-.■      \,f  4b0 

partition  ot 

qualifications  of  ownership  in 4_.:j-ldt5 

sale,  exchange,  or  pledge  of ,  right  of 439-441 

right  of  sale  of,  as  affected  by  police  power 440 

what  not  subject  to  sale 441 

separate  ownership  in ^oS 

succession  title  by 581-643 

by  will oSl-608 

in  case  of  intestacy 638-043 

suspension  of  the  ownership  of tt^~t^'^ 

taxation  as  a  mode  of  acquiring  title  to 558,  .j59 

tenancy  in  common  in 459 

trusts  in 456,  457 

will,  title  by 441-443,581-608 

origin  of  power  to  make  will  of 582,  583 

married  women  could  not  at  common  law 585 

solemnities  of  execution  of  will  did  not  originally  apply  to  will 

of  land 586 

probate  of  will  of 599-602 

will  of,  speaks  from  death  and  not  date  of  execution  ....     606 
PERSONAL  SECURITY, 

right  to,  includes  what 77 

how  violated  and  vindicated 77-94 

(See  Assault  and  Battery;  Duress;  Injuries  to  Health; 
Libel  and  Slander.) 

PETITION, 

right  to  assemble,  and 57 

PETITION   OF   RIGHTS 

rights  guaranteed  by 47 

as  a  common-law  method  of  procedure  of  enforcing  private  rights 
against  sovereign 3,  380 

PIN   MONEY   TRUST, 

for  married  women 269 

PLAYS, 

property  in,  before  publication 488,  490,  495 

(Literary  Property.) 
protected  by  copyright 495-497 

PLEADING, 

plaintiff  must  plead  in  action  on  statute,  defendant  not  protected 

by  exception 35 

defendant  must  plead  compliance  with  proviso  in  statute   ....       35 
POLICE   POWER, 

of  States,  what  generally  includes 75 

invalid  exercise  of,  under  Fourteenth  Amendment 75 

interference  with  liberty  of  contract 75 

interference  with  pursuing  one's  business 75 

interference  with  payment  of  wages  by  employer    ....      75,  76  \ 

regulation  of  railroads  under 75,  76 


INDEX.  731 

[References  are  to  Pages.] 
POLICE    FOVJ'ER  — continued. 

regulation  or  destruction  of  private  property  under 431-438 

relation  to  constitutional  provisions 432 

when  an  invasion  of  right  of  property 432 

when  not  due  process  of  law 432 

instances  of  the  valid  exercise  of 433-437 

invalid 437,  433 

(See  Eminent  Domain  ;  Public  Necessity.) 

right  to  sell  personal  property  affected  by 440 

POLYGAMY, 

not  tolerated  even  though  not  prohibited  by  statute 159 

what  is  a  polygamous  marriage 148 

(See  Marriage.) 
POOR  LAWS, 

support  of  parent  or  child  under 233,  234,  25(5,  262 

apprenticeship  under 316,  318,  322 

POWER, 

of  married  woman  to  dispose  of  property 224 

execution  of  by  will 224 

of  attorney,  defined 462 

POWERS, 

as  a  means  of  disposing  of  personal  property 462,  463 

New  York  law  of  as  to  real  estate 463,  464 

common  law  of 464 

PREROGATIVE  WRITS, 

defined 389 

PRESCRIPTION", 

creation  of  corporations  by 354,  371 

acquisition  of  land  by 369 

corporation  by 371 

PRESENTMENT 

and  indictment  defined 46,  61 

applicable  where  constitutional  provision  applies  to  non-infamous 
offences 46,  61 

PREVENTION   OF  CRUELTY  TO   ANIMALS   ACT 458 

PRIMOGENITURE, 

defined 444-445 

PRIVILEGED  COMMUNICATIONS, 

in  libel  and  slander 87-90 

(See  Libel;  Slander.) 

PRIVILEGES   AND   IMMUNITIES, 

of  citizens  under  Art.  IV.  of  Constitution 128 

of  citizens  under  Fourteenth  Amendment .     130 

(See  Citizens.) 

PRIVITY, 

in  relation  to  disafiirmance  of  infants'  contracts 295 

PRIZE. 

defined 471 

as  a  method  of  acquiring  title  to  personal  property 471 

forfeiture  as  applied  to  admiralty  law  in  cases  of 557 

(See  Forfeiture.) 


7..0  INDEX. 

[References  are  to  Pages.] 
PROBATE   OF   WILL,  ^^^ 

origin  of    ••.•.•.' 600 

what  court  has  jurisdiction  over ;••■••. 

necessity  of  there  being  personal  property  to  give  the  court  juris- 

,.  ,.  600 

diction 

will  disposing  solely  of  foreign  personal  property  cannot  be  pro-     ^^^ 

bated 

jurisdiction  of  a  Court  of  Chancery  over bOU 

citation  of  parties  interested  to  attend 6U0 

evidence  to  show  want  of  testamentary  capacity,  due    execution, 

undue  inflnence,  may  be  introduced 600,  601 

subscribing  witnesses  may  give  their  opinion  of  testator's  mental 

capacity ^^^ 

probate  court  has  no  jury  at  common  law 601 

testamentary  court  has  no  power  to  determine  the  validity  of  a  will 

of  land  at  common  law 601 

«  common  form  "  and  "  solemn  form  "  of,  under  early  law      .     .     .  602 

substitute  for,  under  New  York  statutes 602 

allegations  to  contest,  in  New  York,  must  be  filed  within  one  year  .  602 

PROHIBITORY  LIQUOR  LAWS, 

when  exercise  of  police  power  by  the  State 432,  433,  440 

PROPERTY, 

origin  of,  ownership  of '     '     '  ^^^~^^^ 

held  at  first  in  common  by  families  and  village  communities  .     .     .     416 

undivided  ownership 416 

separate  ownership,  beginning  of 416,417 

meaning  of ,  in  law 418 

movable  and  immovable 418,419 

distinction  between  real  and  personal 419,420 

conversion  in  equity  of 420 

ownership,  things  not  the  subject  of  private 421,422 

wild  animals,  running  water,  etc 421,422 

qualifications  of,  theft,  taxation,  eminent  domain,  public  neces- 
sity, police  power 423-438 

what  is,  under  law  of  eminent  domain 427,  428 

invasion  of  rights  of,  under  police  power 432 

deprivation  of,  without  due  process  of  law 432,  440 

literary  title  to,  at  common  law 488-494 

by  statute 494-505 

in  trade-marks 542 

PROSPECTUS, 

liability  of  directors  or  promoters  for  false  statements  in  or  conceal- 
ments as  to 392-394  ^ 

liability  of  corporation  for  acts  of  directors  in  issuing  untrue  .     .     .     394  '}t, 


PUBLIC, 

interests,  statute  affecting,  how  construed 36,  37 

PUBLIC   MEETINGS, 

right  to  hold  at  common  law 57 

PUBLIC   NECESSITY, 

taking  of  property  by 430,  431 


INDEX.  733 

[References  are  to  Pages.] 

PUBLIC   USE, 

what  is,  under  law  of  eminent  domain 431 

as  affecting  patentability 520  533 

PUBLICATION, 

of  a  libel 80,  81 

(See  Libel.) 

when  amounts  to  dedication  in  law  of  copyright  ....    489  490  494 
(See  Libel;  Slander.) 
PUNISHMENT, 

cruel  and  unusual,  what  is  under  Eighth  Amendment  ....      69,  70 

cumulative  punishments  for  distinct  offences  not 70 

different  punishment  for  different  localities  not 70 

forfeiture  of  citizenship  not 70 

stripes  as  punishment  not  necessarily 70 

death  by  electricity  not 70 

provision  in  amendment  as  to  cruel  and  unusual,  binds  Congress      .  69 

PURCHASE, 

meaning  in  law  of  real  estate I30 

QUANTUM  MERUIT, 

right  of  servant  to  recover  from  master  upon 326,  328 

QUO   WARRANTO, 

as  a  remedy  for  removal  of  officers  of  a  corporation 362,  364 

proceedings  by,  to  forfeit  charter  of  corporation 389,  400 

information  in  the  nature  of,  to  remove  officers  or  forfeit  charter  of 
corporation 362,  389,  400 

RAILROAD  COMPANIES, 

liability  of,  for  negligence  of  servants  of  sleeping  car  companies       .     336 

RATIFICATION, 

of  ultra  vires  acts  of  directors  of  corporation  by  stockholders  .     .  339,  396 
(See  also  Contracts;  Infants.) 

REAL   ESTATE, 

right  of  husband  in  wife's 191,  192,  196,  197 

conveyance  of  by  married  woman 207-210 

right  of  inheritance  of  depends  on  law  of  place  where  situated  .  .  259 
right  to  inheritance  of  when  child  legitimated    under  statutes  of 

parent's  domicile 259 

of  infants,  sale  of  by  statute 277-280 

of  ward,  control  of  guardian  over 277 

capacity  to  devise,  depends  on  law  of  place  where  situated  .  .  .  285 
infant's,  ratification  of  conveyances  and  purchases  by  ...  .  290,  291 
liability  of  owner  of,  in  making  improvements,  blasting,  etc.  .     .     .     338 

capacity  of  corporations  to  acquire 369-371 

by  grant,  etc.,  at  common  law 369 

by  will  under  statute  of  wills 371 

by  will  under  New  York  statutes 372-375 

capacity  of  corporations  to  dispose  of 375,  376 

equitable  conversion  of  as  affecting  right  of  corporation  to  take  ,  .  373 
distinction  between,  and  personal  property 419,  420 


y3^  INDEX. 

[References  are  to  Pages.] 

REAL   ESTATE  — continued. 

alienation  of,  at  common  law ^^^ 

succession  to,  at  common  law,  on  death  of  owner .ro  IftT 

future  estates  in,  at  common  law 4b0,  4bl 

disposal  of.  by  powers  at  common  law 464 

by  New  York  statutes 463, 464 

alienation,  suspension  of  power  of      ......      464,  467,  633-636 

as  assets  of  decedent's  estate 6.j1-6.54 

distinction  between  a  charge  and  direction  in  will  as  to  the  mode  of 

paying  debts ;     "i^- 

residuary  devise  treated  as  specific 652,  653 

testator  may  exempt  personal  property  from  debts 652 

what  court  has  power  to  take  land  for  testator's  debts   ....  653,  654 

forfeiture  of ^^^ 

(See  Forfeiture.) 

escheat  of ^^"^ 

(See  Escheat.) 

taxation  as  a  mode  of  obtaining  title  to 558,559 

(See  Taxation.) 

eminent  domain,  taking  of,  by 559,  427-430 

(See  Eminent  Domain.)  ■ 
wills  of,  testamentary  court  has  no  power  to  determine  the  valid- 
ity of      601 

(See  Probate.) 

RECRIMINATION, 

as  a  defence  to  action  for  divorce  or  separation 167,  189 

(See  Divorce.) 

RELATION, 

doctrine  of,  as  applied  to  inquisition  in  lunacy 308 

as  applied  to  forfeiture 556,  557 

RELIGION, 

establishment  of,  or  prohibiting  free  exercise  of,  prohibited  to  Con- 
gress and     .     .         55, 117 

establishment  of,  not  prohibited  to  States  by  Constitution       .     .      55,  56 

State  constitutions  respecting 56 

constitutional  clause  respecting  cannot  be  invoked  by  territories  in 

defence  of  immoral  acts 56,  117 

provisions  New  Hampshire  Constitution  concerning 56 

training  of  child  in 245,  246 

RELIGIOUS  CORPORATIONS  OR  SOCIETIES, 

devises  in  trust  to   . 373 

power  to  dispose  of  land 10,  376 

succession  of  membership  in 360-362 

mortmain  acts  in  England  and  the  United  States 370,  634 

REMEDIES, 

as  connected  with  rights 2 

commensurate  with  rights 8 

no  right  without 8 

in  equity  . 8 

in  courts  of  common  law 8 

(See  Damages.) 


i 


INDEX.  735 

[References  are  to  Pages.] 

REMEDIES  —  continued. 

choice  of,  when  statute  gives  remedy  for  common-law  right   ...       37 

statutory,  followed  where  new  right  created 37 

compensatory,  preventive,  and  punitive 77 

for  infringement  of  trade-mark \     559 

°f  patent '.'.".'.'.  537-540 

of  copyright 504^  505 

REPORTS, 

as  depositories  of  rules  of  law 15-^^7 

distinction  between  record  and 15 

definition  of 15  16 

merit  of,  may  determine  value  of  decision 18 

merit  of  older  and  later,  value  of  syllabus 18,  19 

use  of  contemporaneous  English,  before  American  Revolution     .     .    '  25 

early  English,  Year  Books 25 

English  law 25^  26 

how  prepared  in  United  States 26 

value  of  treatises,  digests,  and  abridgments  in  connection  with  .     .       26 
rules  for  determining  value  of  reported  case 17-24 

(See   Decision.) 
REPUTATION, 

injuries  to  (see  Likel;  Slander). 

as  evidence  of  marriage 156 

RESIDUARY  DEVISE, 

what  is  a  residuary  bequest 611 

treated  as  specific  when 652 

RESIDUARY  LEGACIES, 

what  are gH 

RETIIOSPECTIVE  LAW, 

defined  and  compared  with  ex  post  facto 54 

REVOCATION, 

of  wills 592-597 

RIGHTS, 

corresponding  duties 12 

imply  duties  when 1  45 

includes  power  of  controlling  actions  of  others  or  law 2 

mode  of  enforcement  called  "  sanction  " 2 

(See  Law.) 
general  name  for  enforcing,  "  remedies,"  or  "  procedure  "...         2 

constitute  substantive  law  and  imply 2 

person  in  whom  right  inheres 2 

(See  Person.) 

persons  bound  to  submit  to  exercise  of 3 

(See  Persons.) 

subject  over  which  claimed 3 

(See  Law.) 

not  presented  to  courts  abstractly 4 

appear  in  connection  with  acts  done  by  claimant  or  those  who  dis- 
pute the  right 4 

existence  determined  through  medium  of  action  by  a  court     ...         4 

"  no  right  without  a  remedy  " 8 

(See  Remedies.) 


736  ^^^^^^- 

[References  are  to  Pages.] 

niGRTS— continued.  ,.  .^     ,      ,    ,  8  45 

violation  injurious  to  individual  a  tort ^^-^^ 

violation  of  injurious  to  public  a  crime ^_   __^ 

absolute  and  relative  defined '   .*     "     '         J      ,-'-^ 

absolute,  personal  security,  personal  liberty   and  private  property     4o-. . 
(See  these  various  titles.) 

as  secured  and  established  by  Magna  Charta 45,  46 

(See  Magna  Charta.) 

as  secured  by  Petition  of  Right      •     •     •     '     \ 

(See  Petition  of  Right.) 

as  secured  by  Habeas  Corpus  Act  .     .     •     •     • ' ' 

(See  Habeas  Corpus  Act.) 

as  secured  by  Bill  of  Rights 

(See  Bill  of  Rights.) 

as  secured  by  Act  of  Settlement 4^'  "^^ 

(See  Act  of  Settlement.) 
relative  (see  Husband  and  Wife  ;  Parent  and  Child  ;  Guar- 
dian AND  Ward;  and  Master  and  Servant). 
relative  and  absolute,  violated  by  same  wrong  .  .     •     .141,  247,  343 

when  created  by  statute,  provisions  of  must  be  followed  in  enforcing    4U8 


SALE, 

conditional,  of  personal  property 4-4 

fraud  in,  as  affecting  passing  of  title 421 

right  to  sell  as  an  attribute  of  ownership 439,  440 

SALVAGE, 

allowed  in  case  of  derelict 479,  480 

SCIENTER, 

defined 45- 

SCIRE  FACIAS, 

writ  of,  to  annul  charter  of  corporation 380,  400 

as  a  remedy  to  vacate  letters  patent 535 

SEARCHES, 

unlawful  prohibited 58,  59 

constitutional  clause  concerning,  corrective  of  "  general  warrant  "  .       94 

SEDUCTION, 

of  wife,  suit  for,  by  husband 220 

of  daughter,  action  by  parent 248-2.")0 

action  by  daughter 24*^,  249 

when  a  crime 249 

when  occurs  under  promise  of  marriage 248,  249 

of  female  servant,  rights  of  master 344 

SEPARATE  ESTATE  OF   MARRIED  WOMAN, 

liability  of,  for  debts  of  wife 199 

appointment  of 199,  219-223 

control  of  wife  over 213.214 

methods  of  creation,  rights  of  wife  in 21.'>-223 

pin  money  trust 219 

methods  of  disposal 219-223,  224 


II 


INDEX.  737 

[Refereuces  are  to  Pages.] 

SEPARATE  ESTATE  OF  MARRIED   WOMA^  —continued. 

rights  of  wife  against  husband  for  protection  of 221 

chiuse  against  anticipation 222 

construction  of  settlements  creating 223 

power  to  dispose  of,  by  will 224 

SEPARATION, 

judicial,  of  hupband  and  wife  (see  Divorce). 

of  husband  and  wife,  by  agreement,  not  a  bar  to  divorce   ....  172 

ol  husband  and  wife,  effect  of,  on  liability  for  support  of  wife      .     ,  204 
of  husband  and  wife,  settlements  of  property  in  \'iew  of     .     .     .  217,  218 

of  husband  and  wife,  dum  sola  et  casta  clause 218 

creation  of  separate  estate  by  agreement  of 218 

right  of  wife  to  acquire  new  domicile  after 230 

effect  of,  as  to  custody  of  child 242 

SERVICE, 

suit  for  loss  of,  by  husband 225 

suit  for  loss  of,  by  parent 247-254 

(See  Parent  and  Child;  In.jcries  Causing  Death;  Lord  Campbell's 

Act.) 

contracts  of,  rescission  of  by  infant 295 

suits  for  loss  of,  by  master 343-345 

(See  Master  and  Servant.) 

of  apprentice,  suits  for  loss  of 317,  321 

(See  Apprenticeship.) 

of  minor  child,  right  of  father  to 246,  347 

compensation  for,  when  not  recoverable 347-349 

gratuitous  service 347 

person  rendering,  under  legal  duty 347 

parent  and  child,  husband  and  wife,  etc.     .     .     •     348 
voluntary,  when  compensation  recoverable  for 347,  349 

SERVITUDE, 

involuntary  under  Thirteenth  Amendment 314 

(See  Slavery.) 

SHAUE.S.     (See  Cobporations;    Stock  Corporations.) 
SLANDER, 

defined "'' 

per  se  and  with  special  damage °3 

charge  of  commission  of  crime,  instances,  mitior  sensus   ...       84 

charge  of  having  contagious  disease ^^^ 

charge  of   incompetency   in   trade,   etc.,  must   directly  affect 

employment °'^ 

defamatory  matter  attended  with  special  damage,  instances       85,  8fi 

words  spoken  ironically  or  in  form  of  question  may  be °'^ 

with  special  damage,  sliglit  injury  sufficient °" 

for    malice,  privileged    communications,  defences,   justification, 
and  mitigating  circumstances  (see  Libel.) 

SLANDER  OF   TITLE, 

defined 93,  94 

rule  as  to,  extends  to  disparagement  of  goods 94 

SLAUfiHTER-IIOUSE   CASES, 

considered  in  relation  to  police  power 434 

47 


y38  INDEX. 

[References  are  to  Pages.] 

SLAVERY, 

defined,  basis  of <J^^»  ^A* 

and  involuntary  servitude  in  United  States 314 

marriage  of  parties  in  state  of 150 

SOCAGE  TENURE.     (See  Guardian  and  Ward) 270 

SOLDIERS, 

quartering  of ^' 

SOVEREIGN.    (See  Foreign  Sovereign.) 

SPECIFIC  LEGACIES, 

what  are 608-610 

life  tenants'  right  to  enjoy 618 

ademption  of 621-624 

SPENDTHRIFTS, 

general  statutory  rules  as  to  care  of 310 

STATE, 

law  of,  consists  of  what 11 

amendments  to   United  States  Constitution  do  not  affect,  except 

Thirteenth,  Fourteenth,  and  Fifte.-^nth 42 

artificial  person  entitled  to  sue 2 

cannot,  in  general,  be  sued  by  an  individual 3 

United  States  Constitution  does  not  prohibit  establishment  of  re- 
ligion by 55,  56 

inhabitants  of,  presumably  subject  to  laws  of 72 

restrictions  on  actions  of,  under  Fourteenth  Amendment    .     .     .      72-77 
jurisdiction  of  courts  as  to  actions  for  injuries  causing  death  com- 
mitted on  board  ship  registered  in 253-2.^4 

territory  of,  as  to  ship  on  high  seas  registered  at  port  of     ...     .     2.i4 
power  of,  to  exclude  foreign  corporations  from  doing  business      .     .     .^53 

foreign,  may  sue  in  our  courts 377 

may  sue  in  Federal  courts 377 

suits  by  or  against  in  corporate  capacity 377-380 

suits  against  in  our  courts 380 

suits  against,  in  Federal  courts 380-381 

suits  against  agents  acting  under  authority  of ,380 

right  of,  as  to  eminent  domain 405  409  437 

STATUS, 

may  mean  position  of  porson  entitled  to  sue 45 

of  husband  or  wife  as  affected  by  divorce 182-184 

what,  created  by  marriage 151 

of  legitimate  child        _  055  ■ 

of  illegitimate  child,  at  common  law  and  by  statute  ....       258,  263 

of  persons  of  unsound  mind,  as  affecting  capacity 304-312 

proceedings  for  determination  of,  of  unsound  mind    ....       .30.5,  311 

jurisdiction  of  court 305'  39(3 

mode  of  proceeding 3Qg'  307 

effect  of  the  adjudication 307-311 

of  Indians  under  United  States  laws  .     .     .     . 311   31^ 

""{'^^^^^ '.'.'.'.       313:314 

ot  apprentice goQ  300 

of  corporation,  whether  foreign  or  domestic     .     .     .       352-354,  381-383 
of  a  thing,  changed  by  a  judgment  in  rem .'     .     562 


INDEX.  739 

[References  are  to  Pages.] 

STATUTE   LAW, 

citation  of  English  and  American  statutes 44 

confined  to  territory  of  sovereign  power 43 

constitutional  restrictions 41-44 

law  presumed  constitutional 41 

act  violating  intent  of,  unconstitutional     •...„...       42 
law  may  be  valid  in  one  aspect  and  void  in  another     ....       42 
law  not  void  as  opposed  to  spirit  of,  when  subject  of,  not  men- 
tioned in  Constitution 49 

not  void  because  oppressive,  unfair,  or  not  justified  by  public 

necessity 42 

if  unconstitutional  officer  acting  under  is  not  protected     ...       43 
constitutionality  of  an  act  of  Parliament  cannot  be  raised    .     .       43 
(See  Parliament.) 

contrasted  with  common  law 11   28 

declaratory,  defined 29  34 

enactment  of,  manner  of 7    11    28 

comparison   of  the   powers  of  Congress,  State  legislatures,   or 

Parliament,  to  enact 8   28 

enlarging  and  restraining,  statutes  defined 29 

interpretation,  rules  governing 29-39 

words  taken  in  their  ordinary  sense  unless  technical    ....       31 

meaning  must  be  found  in  statute 32 

whole  must  be  taken  into  account,  also  statutes  in  pari  materia         32 

contemporaneous  exposition  valuable 32,  33 

regard  had  to  old  law,  mischief  and  remedy 33 

reason  and  spirit  rather  than  letter  followed  ......      33,  34 

penal,  construed  strictly 34 

remedial,  liberally 34 

•when  different  parts  contradictory,  so  construed  that  both  may 

stand,  if  impossible  saving  clause  void 34,  35 

distinction  between  exception  and  a  proviso,  material  in  plead- 
ing  35 

(See  Pleading.) 

in  general  acts  prospectively,  exceptions 35,  36 

distinction  between  mandatory  and  directory  words     ....       36 
statutes  in  derogation  private  right  strictly  followed,  tax  sales    .       36 

penalty  may  imply  prohibition 37 

statutory  or  constitutional  benefit  may  be  waived 37 

choice  of  remedies  where  statutory  right  existed  at  common  law, 

but  not  when  new  right  created 37 

expression  of  one  thing  excludes  others,  except  where  expressed 

by  way  of  example 37,  38 

reference   to   preamble,   title,   extrinsic   circumstances,    where 

words  are  doubtful 38,  39 

in  construing  revised  or  codified  statutes,  change  in  language 

does  not  indicate  a  change  in  intent 38 

where  one  statute  refers  to  another  by  several  descriptive  par- 
ticulars, those  plainly  false  may  be  rejected 38 

effect  must  be  given  to  an  inartificially   drawn  statute,  if  in- 
tent can  be  made  out 38 

intent  may  be  inferred  from  cause  of  enactment,  if  words  ob- 
scure     j^8 


740  "■'^^-         , 

[References  are  to  Pages.  J 

STATUTE    LAW  —  continued.  S 

interpretation,  rules  governing  ■       ^  .,  39 

inconsistent  expressions  must  be  harmonized  .     .     •••39 

"anLaticalruL  do  not  prevail  over  manifest  intent  .  39 

f  erctment  in  same  terms  as  former,  deemed  an  adoption  of 

the  iudicial  decisions  on  the  former  act       •••.-,••  Z, 

circumstances  leading  to  enactment  sometimes  considered    .     .  39 

meaning  given  which  gives  statute  eliect        ^- 

saving  clause  declared  void  when  repugnant ^o 

proviso  does  not  necessarily  destroy  purview       .     .     •     •     •     _  ^o 

Satute  may  act  retrospectively  when  not  interfering  with  vested  ^^ 

rights ,,,'/))"'  '-57 

word  "may  "sometimes  construed  "ww*-<      •••••;.■ 
statute  for  protection  of  public  health  or  morals  need  not  in       ^^ 

terms  prohibit  act •  "     '  .  ;     '       .    '.  o? 

iurisdiction  of  subject-mattBr  not  obtained  by  waiving  statute  .       37 
(See  Jurisdiction.) 

saving  clause  in,  effect  of ^^ 

in  repealing  acts 

exception  and  proviso  defined ^ 

when  proviso  repugnant  to  purview ^       ^^ 

(See  also  Courts;  Congress;  Legislature;  Parliament;  and 
as  to  interpretation,  Interpretation  and  Construction.) 

mandatory  and  directory,  when 36 

penal,  defined f^f 

private,  defined •  _  • 

cannot  include  more  than  one  subject  to  be  embraced  in  title   -       41 

public,  defined o^'  qI 

remedial,  defined ^9,  34 

repeal  and  its  effect 39,  41 

no  statute  irrepealable "^^ 

by  express  words  or  by  implication 39 

portion  left  unchanged  by  amendment,  not  considered  as  re- 
pealed and  re-enacted 40 

substituted  statute  repeals  former 40 

special   statute  of  local   application   not  repealed  by  general 

words  of  general  statute 40 

if  repealing  statute  repealed,  former  law  revives 40 

nullifies  proceedings  then  pending 40 

State  court,  construction  of  State  statute  by 22-21^ 

time  in  which  an  act  directed  by.  to  be  performed,  how  computed  .       44 
when  mandatory  or  directory       ....  ......       36 

void  statutes  (see  subdivision,  constitutional  restrictions.) 
STATUTE   OF   DISTRIBUTIONS, 

general  provisions 445-446,  638-647 

(See  Distribution  of  Intestate's  Estate.) 
STATUTE   OF   WILLS, 

devises  to  corporations 371,  586 

STOCK.     (See  Corporations;  Stock  Corporations.) 
STOCK  CORPORATIONS, 

agent,  power  to  increase  stock 409 

amalgamation  or  consolidation  of,  when  valid 403,  404 


INDEX.  741 

[References  are  to  Pages.] 

STOCK   CORPORATIONS  —  continued. 

amotion  of  officers  of 362,364,365 

assessments  on  stockholders 3g5  4Qg 

capital  of,  trust  fund  for  creditors       .      357,  397,  398,  404,  4*05,  409,'  412 
diversion  of ggj'  .,7 

cannot  be  used  to  sustain  other  corporations 384 

certificate  of  stock,  as  evidence  of  title '.     .  406  408 

not  negotiable A0'\ 

transfer  of jqo 

over  issue,  remedy  for 334  ^qq 

contract  of  subscription,  when  company  is  organized '  406 

when  projected '     4,,g 

f.^^'f-     ■     ■ .'.*.';■.;    35l'405,413 

directors  of,  election  of 3Q3  3^5 

amotion  or  removal  of    , 362,  364,  365,  389,' 390 

relation  of,  to  corporation ,     ,  39O  39(5 

liability   of,  to  corporation    and  stockholders  for  misconduct, 

diversion  of  capital,  etc 39O,  396,  398 

liability  to  third  persons  for  misconduct,  diversion,  etc.  392,  397,  412 
liability  to  subscribers  for  fraudulent  prospectus,  or  report,  etc.  392,  394 
remedies  against  for  misconduct  under  New  York  law  .     .     396 

ultra  vires,  acts  of 356,  359^  397 

disfranchisement  of  stockholders  of 365,  406,  407,  408 

dissolution  of 398-405 

effect  at  common  law 494 

effect  in  courts  of  equity  and  by  statute 404,  405 

rights  of  stockholders  and  creditors  on 404,412 

under  English  Acts 401 

under  New  York  statutes 402 

dividends  payable  out  of  profits 397,  410 

stock,  what  are 409 

time  declared  fixes  right  to 410,411 

on  preferred  and  common  stock 411 

when  guaranteed 411 

effect  of  declaration  of 410 

domicile  or  residence  of 381 

election  of  trustees  or  directors,  time  of  holding   .     , 363 

voting  by  proxy  and  pledged  stock 363,  3G4,  409 

adjourned  and  special  meetings 361 

remedy  for  wrongful 364 

forfeiture  of  stock 365,  406,  407,  408 

membership  in,  how  determined ,      .     .     .362,363 

partnership  and  joint  stock  companies  contrasted  with       .     .     .351,405 

prospectus,  fraudulent  statements  in 392-396 

liability  of  directors  for 392-396 

liability  of  corporation  for 394,395 

ratification  of  ultra  virea  acts  by  stockholders    .......  359,  396 

removal  of  officers,  remedies 362,  363 

stock,  nature  of  power  of  corporation  over 408 

increase  when  allowed 409 

unwarranted  increase 409 

reduction 410 

creation  of  preferred 409-41 1 


"742  INDEX. 

[References  are  to  Pages.] 

STOCK   CORPORATIONS  —  continued. 

stock,  forfeiture 367,  406,  407 

transfer  and  pledges  of 408 

transfer  to  escape  liability  for  calls 407 

preferred  and  common,  forfeiture     .     .      367,406,407,408,409,411 

stockholders,  rights  of  to  vote  for  directors 362-364,  410 

to  receive  dividends 408,  410 

to    compel    directors    and    trustees    to    account    for    miscon- 
duct     397,403,411 

remedies  for  diversion  of  capital 411 

remedies  against  corporations 411 

on  issue  of  new  stock 407 

on  dissolution 404,  408.  412 

ratification  of  wrongful  acts  of  directors 359, 396 

meetings  of,  where  held 3S1 

stockholders,  liability  to  creditors 395,  412,  413 

subscriber  for  stock,  when  becomes  a  shareholder 406 

subscription  for  stock,  contract  of,  consideration 406 

when  action  will  lie  on 406 

when  made  on  faith  of  fraudulent  prospectus 392-396 

rescission  of,  for  fraud 394 

liability  of  subscriber  after  transfer  of 407 

failure  to  pay  amount  of 407 

changing  articles  of  association  after 407 

when  ail  not  subscribed  for 407 

succession  in  case  of    .     , 360,  362,  365 

transfer  of  stock  or  subscription  to  escape  liability  for  calls      .     .  407 

ulh-a  vires  acts  of 356-359 

under  laws  of  New  York 412,  413 

under  English  Companies  Acts 395,  401,  402 

as  to  by-laws,  creation,  and  powers  of  stock  corporations  (see  Cor- 
porations). 
STOCKHOLDERS.     (See  Corporations;  Stock  Corporations.) 

SUBROGATION, 

of  creditor  of  corporation  when  debt  is   ultra  vires  to  position   of 
creditor  paid  from  fund 360 

SUBSCRIPTION   FOR   STOCK, 

liability  of  infant  for 300 

SUCCESSION, 

to  real  estate  at  common  law  on  owner's  death 444 

trade-mark   passes  to  the   representatives   of  appropriator  at   his 
death 5jp 

escheat  where  owner  dies  without  successors .     557 

as  used  in  the  Roman  law,  defined .581 

^^^^^  by ;     ■       581-647 

by  will 581-638 

in  case  of  intestacy 638-647,  443-446 

(See  Distribution  of  Intestate's  Estate;  Will.) 
SUI  JURIS, 

expression  defined 240 


INDEX.  743 

[References  are  to  Pages.] 

SUPERSTITIOUS  USES, 

Kuglish  law  as  to 634 

SUPREME  COURT  OF  THE  UNITED  STATES, 

jurisdiction  to  issue  habeas  corpus 99-102 

SURROGATE, 

power  to  appoint  guardian  of  infant 275,  276 

SUSPENSION   OF  OWNERSHIP, 

of  personal  property 464,  467 

TAX  SALES, 

statutes  strictly  followed 36 

under  United  States  internal  revenue  laws 559 

under  New  York  laws .  559 

TAXATION, 

for  private  purposes  unconstitutional 43 

property  of  infants  subject  to    . 299 

as  a  qualification  to  ownership 424,  425 

differs  from  a  license,  how ...  436 

eminent  domain,  how                ....           426 

may  be  levied  on  real  and  collected  from  personal  estate     ....  559 

assessment  of  taxes 558 

proceedings  to  distrain  for  taxes 558 

collection,  under  United  States  internal  revenue  laws 558 

requiring  county  to  issue  bonds  for  State  improvement  is,  and  not 

exercise  of  eminent  domain 559 

duty  on  legacies  and  succession 657 

TENANT   FOR   LIFE, 

his  right  to  enjoy  a  specific  legacy  in  its  original  form 618 

to  dividends  on  stocks  bequeathed     ....         618 

residuary  gift  of  perishable  article.? 617 

apportionment  of  payments  on  death  of 619 

TENANCY   IN   COMMON, 

in  personal  property 451 

TERRITORIES, 

trial  of  crimes  committed  in 50,  59 

THEFT, 

as  a  qualification  to  ownership 423 

TITLE   BY   ACT  OF   THE   LAW, 

(See  Assignment  for  Creditors;  B.\nkruptcy  and  Insolvency; 
Distribution  of  Intestate's  Estate;  Eminent  Domain; 
Escheat;  Forfeiture;  Judgment,  Succession;  Taxation.) 

TORTS, 

husband's  liability  for  wife's 205 

and  crimes  defined 8 

liability  of  married  woman  for 219 

of  child,  liability  of  father  for 238 

liabiJitv  of  infant  for  his 301,302 


744  ^^^^^- 

[References  are  to  Pagea.] 

TRADE-MARKS,  g^^  g^j 

title  to,  by  appropriation ^^^'  .^^ 

earliest  decisions  as  to      ■     ■    ; ^ ,o'  r^iQ 

nature  of,  and  the  ownership  of  it li^i-oU 

at  common  law  or  by  statute 544-547 

what  constitutes  a  valid  .     .     .     •     • _ 

name  of  the  manufacturer  or  seller '  -ir 

of  the  place  of  origin '   /.    '    J     I     ,  a     '     TaI 

use  of  the  word  "  patent  "  where  the  subject  is  not  patented     .     545 

546 
arbitrary  expressions ^^^ 

title  of  a  book 

device  or  label '.'.][     !  547-549 

assignment  oi .'.',.",         r  i.i 

as  affected  by  the  sale  of  the  business,  including  transfers  on  the     _ 

dissohition  of  a  partnership ^t?!'  -?o 

...  .  5o0-oo2 

infringement ^.^ 

damages  for -^    --o 

injunction  to  restrain ^^1»  ^^- 

registration  of     .     •  J     .^" 

under  the  English  Act »-^-'  ^'^^ 

ia  United  States »^^'  2J* 

origin  of  the  law  of ^J^ 

defined " 

relation  of  "  good-will  "  to •^*"- 

aliens,  as  well  as  citizens,  protected  in  the  use  of 54.3 

no  violation  of,  to  use  for  a  wholly  distinct  purpose _       543 

United  States  Congress  has  no  power  to  pass  general  laws,  as  to   544,  553 

passes  to  representatives  of  appropriator  at  his  death 548 

mortgagee's  rights "     '     '     ' 

special  questions  arising  on  the  dissolution  of  partnership  ....     549 

remedies  for  infringement ^^^ 

rules  governing  the  right  to  an  injunction ool 

jurisdiction  of  United  States  courts 544,  553 

criminal  legislation  for  the  protection  of      .......  554 

rules  governing  the  right  to  an  injunction  to  restrain  infringement 

q£ .  551, 5.r2 

plaintiff  must  seek  his  remedy  "  with  clean  hands  "    ....     551 

must  have  been  imitated  551 

relief  may  be  refused  for  delay oo- 

color  of,  cannot  be  taken  into  account 552 

may  extend  to  third  persons,  such  as  carrier  of  goods  having 

forged  brands         55- 

TRADE    SECRETS, 

servant  may  not  disclose 327 

TREASURE   TROVE, 

ownership  of       . ^o 

belonged  to  finder 557 

TREASON, 

forfeiture  for 556 

TREATIES, 

as  basis  for  extradition 110-113 

of  extradition  with  Great  Britain .....Ill 


INDEX.  745 

[References  are  to  Pages. ) 

TREATISES o^ 

TRIAL, 

by  jury  in  criminal  cases  under  Constitution 60-72 

discretion  of  judge  at  criminal,  to  discharge  jury 63-65 

(See  Jeopardy.) 

in  Federal  courts  in  civil  actions 7I 

by  jury  secured  by  Magna  Charla 45 

by  jury  in  civil  cases  reviewed  in  United  States  courts  according  to 

rules  of  common  law -rj 

(See  Common  Law.) 
by  jury  where  value  in  controversy  does  not  exceed  twenty  dollars, 

applicable  solely  to  Federal  courts 7I 

by  jury  in  criminal  cases  under  State  laws 76 

TRUST  FUNDS, 

following  in  equity 455^  457 

TRUSTEES, 

when  corporations  may  be 333 

TRUSTS, 

pecuniary  consideration  necessary  to 209  210 

for   wife's   separate   use   (see   Husband   and  Wife  ;    Separate  ' 
Estate  of  Married  Woman). 

pin  money,  for  married  woman 219 

in  New  York,  for  life  of  designated  beneficiary 223 

will  not  fail  for  want  of  trustee 219 

in  land,  by  will,  at  common  law  and  under  statute  of  wills  .  .  .  371 
in  land  to  corporations,  under  New  York  statutes  .....  372-375 
in  land  held  by  corporation  for  a  special  purpose  ....     375,  387-389 

in  land  held  by  corporation  for  general  purposes 386 

no,  shall  fail  for  want  of  a  trustee 405 

capital  of  corporation  held  in,  for  shareholders  and  creditors  .     . 

397,  398,  404,  505,  409-412 

in  personal  property 456  457 

following  fund  impressed  with 456^  457 

ULTRA   VIRES, 

acts  of  corporations 356-359,  367,  368,  397,  404 

(See  Corporations.) 
USER, 

acceptance  of  charter  of  corporation  by 356 

(See  Corporations.) 
UNBORN   CHILDREN, 

rights  of  concerning  property  involved  in  trusts  and  construction  of 

wills .300 

UNDUE    INFLUENCE, 

of  guardian  over  ward 283 

wills  made  under 584,  585 

UNITED   STATES, 

Constitution,  treaties,  and  statutes  supreme  law  of  the  land    .     ,      1,  111 
(See  Courts;  Com.mox-Law;  Amendments;  Congress;  Consti- 
tutional Restrictions.) 


746  ^^^^^' 

[References  are  to  Pages.] 

^^  p^ferenl^^ttrSrrLtes  government  under  an  assignment  ^^^ 
prSritTefofdebtsduejnsettleme^  ...  649 
acts 'repealing  laws  may  act  retrospectively 36 

VESTED  LEGACY,  613-616 

what  is ; q-^q   q-^j 

absolute  or  conditional  legacies ' 

VILLAGE  COMMUNITY,  ^^^ 

ownership  of  property  by o^i    .qq 

VISITATION   OF   CORPORATIONS 3b4-o«9 

(See  Charitable  Cokporations.) 

VISITOR  OF   CORPORATIONS,  ^^___^^^ 

defined 

(See  Charitable  Corporations.) 

WAGES, 

suit  for  by  servant,  when ^-'^ 

(See  Master  and  Servant.) 

of  minor  child,  right  of  father  to 247 

(See  Parent  and  Child.) 

WAR, 

effect  of,  on  contracts  between  citizens  of  belligerent  countries        138,  139 

(See  Alien.) 
ownership  of  property  captured  in 409-472 

WARD  OF   COURT 244,  280,  281 

(See  Guardian  and  Ward.) 

procedure  to  make  infant 280,  281 

effect  of  becoming 280,  281 

marriage  of,  power  of  equity  to  compel  settlement 297 

WASTE, 

by  husband  as  tenant  by  the  curtesy 192 

WILL, 

acknowledgment  of  signature  to,  by  testator 588,  589 

after  born  children,  partial  revocation  under  statute  providing  for  .     595 

age,  want  of,  when  incapacitates  from  making 583 

incapacity  of  infant  to  make,  of  real  estate 297 

alterations  and  erasures  in,  presumed  after  execution 593 

attestation  clause  to 591 

presumptive  evidence  of  acts  recited 591 

cancelling,  obliterating,  or  destroying  revocation  of,  by      .     .     .  592,  593 

capacity  to  make 583-585 

want  of  age 583 

mental  unsoundness 584 

undue  influence 584,  585 

coverture 223-225,  585 

charity,  devise  or  bequest  to,  when  testator  leaves  wife  or  children  .     238 
codicil  to,  what  is 597,  598 


INDEX.  747 

[References  are  to  Pages.] 
WILL  —  continued. 

construction,  operation,  and  effect  of 603-608 

of  wills  in  foreign  language g05 

testator's  intent  presumed  to  be  found  in  prior  legal  decisions 

interpreting  the  words  used 605 

same  in  law  and  equity q05 

technical  words  presumed  to  be  used  in  their  legal  sense  .     .     .     605 
•wills  of  personal  property  speak  from  testator's  death,  not  from 

execution g06 

all  parts  construed  together qqq 

words  are  to  be  taken  in  their  ordinary  and  grammatical  sense      606 
not  invalid,  if  words  are  plain,  because  of  inconvenience  or  ab- 
surdity      606 

extrinsic  evidence  admissible  to  remove  an  ambiguity      .     .     .     606 
not  admissible  to  remove  an  uncertainty,  as  distinguished 

from  an  ambiguity 606,  607 

error  in  description  does  not  necessarily  vitiate  a  legacy  .     .     .     607 
■words  and  clauses  may  be  transposed,  supplied,  or  rejected, 

when  warranted  by  context  or  general  scheme 607 

circumstances  under  which  made  will  be  regarded  ...     6U8 

testator  will  be  presumed  to  have  calculated  on  the  effect,  and 

to  have  intended  to  dispose  of  his  whole  estate 608 

cy/jres,  or  rule  of  approximation 60S 

proceedings  to  obtain 603,  60i 

jurisdiction  of  Surrogate  in  New  York  over 604 

c?/ ;jres,  doctrine  of 31,608,634,635 

extraneous  paper,  reference  to  in,  rules  governing 588 

must  be  in  existence  at  the  time 588 

reference  to,  must  leave  no  doubt  as  to  identity 588 

a  question  of  construction  whether  reference  sufficiently  incor- 
porates      588 

reference  may  be  to  a  foreign  will  or  other  instrument     .     .     .     588 

guardians,  appointment  of,  in 272-274 

holographic,  under  Roman  law 586  n. 

joint,  as  distingui.shed  from  mutual 597 

law  of  place  or  domicile,  solemnities  of,  depending  on,  distinction 

between  real  estate  and  personal  property 587 

legacies  in  (see  Legacies). 

lunatic,  capacity  of,  to  make,  when  inquisition  suspended  ....     307 
capacity  of,  restored  to  reason,  though  inquisition  not  super- 
seded, to  make 308 

married  women's  power  to  make 223-225,  585 

mental  unsoundness,  when  incapacitates  from  making 584 

mutual,  what  are 597 

as  distinguished  from  joint 597 

nature  and  requisites  of 585-591 

must  be  subscribed 587-589 

acknowledgment  of  signature 588,  589 

must  be  declared  by  testator  to  be  his  will 589 

signature  of  witnesses 589-591 

attestation  clause 591 

non-revocable 596,  597 

nuncupative  or  oral 686 


748  INDEX. 

[References  are  to  Pages.] 

WILL  —  continued. 

origin  of  power  to  dispose  of  property  by     ...     .      441-443,  582,  .583 

prol)ate 599-602 

(See  Probate.) 

real  estate,  wills  of 224 

incapacity  of  infant  to  make 297 

testamentary  court  has  no  power  to  determine  the  validity  of    .     601 

devises  of,  to  corporations 371-375 

revival  and  republication  of 597-599 

in  New  York  revocation  of  second,  does  not  revive  first,  unless 

intended 598,  599 

revocation  of 592-597 

revocable  wills 592 

express  revocation 592-59-4 

revoking  clause  in  later  will 592 

cancelling,  obliterating,  or  destroying 592,  593 

intent  as  an  element  of 593 

"dependent  relative  " 594 

implied 594-596 

inconsistent  later  will 594 

subsequent  marriage 595 

partial,  under  statute  providing  for  after  born  children    .     .     .     595 

statutory  provisions  working 595,  596 

by  testator  changing  his  relation  to  property  bequeathed      .     .     596 

non-revocable  wills 596,  597 

statute  of  wills 371 

subscription  of,  by  testator 587-589 

subsequent  marriage,  when  revoked  by 595 

title  by 582 

unborn  children,  rights  of,  under 300 

undue  influence  in  inducing  the  making  of 584,  585 

witnesses  to,  signatures  of 589-591 

may  testify  as  to  their  opinion  of  testator's  mental  capacity    600,  601 
WITNESSES, 

right  of  accused  to  be  confronted  by 61 

compulsory  process  for  obtaining,  guaranteed  to  accused     ...      61,  02 

accused  not  compelled  to  be  a,  against  himself 62 

husband  and  wife  as,  for  and  against  each  other 230,  232 

husband  and  wife  as,  concerning  non-access 261 

to  will  may  give  their  opinion  of  testator's  capacity 600,  601 

WRECKS, 

ownership  of 477  557 

AVRIT, 

de  liomini  replegiando 58,116 

(See  Habeas  Corpus.) 
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